UNITED STATES 

SECURITIES AND EXCHANGE COMMISSION 

Washington, D.C. 20549

 

 

FORM 8-K

 

CURRENT REPORT 

Pursuant to Section 13 or 15(d) of 

the Securities Exchange Act of 1934

 

Date of Report 

May 10, 2016  

(Date of earliest event reported)

 

SOUTH JERSEY INDUSTRIES, INC.  

(Exact name of registrant as specified in its charter)

 

New Jersey 1-6364 22-1901645
(State of incorporation) (Commission File Number) (IRS employer identification no.)

 

1 South Jersey Plaza, Folsom, New Jersey 08037  

(Address of principal executive offices, including zip code)

 

(609) 561-9000  

(Registrant’s telephone number, including area code)

 

(Former Name or Former Address, if Changed Since Last Report):

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

 
 

 

 

Item 8.01. Other Events.

 

South Jersey Industries, Inc. (the “Company”, “SJI,” “we”, “us” or “our”) is updating the description of its capital stock for the purpose of updating the description of its capital stock contained in its registration statement filed under Section 12 of the Securities Exchange Act of 1934. To the extent the following description is inconsistent with prior filings, it modifies and supersedes those filings.

 

SJI is authorized to issue 120,000,000 shares of common stock, $1.25 par value per share, and 2,500,000 shares of preference stock, without par value. As of May 6, 2016, there were 71,425,506 shares of common stock outstanding and no shares of preference stock outstanding.

 

Our common stock is listed on the New York Stock Exchange and trades under the ticker symbol “SJI.” All outstanding shares of our common stock are validly issued, fully paid and nonassessable.

 

The following description of the terms of our common stock is not complete and is qualified in its entirety by reference to our Certificate of Incorporation, as amended through February 27, 2015 (as so amended, our “Certificate of Incorporation”), our Bylaws, as amended and restated through April 29, 2016 (our “Bylaws”), and the laws of the state of New Jersey.

 

Common Stock

 

Voting Rights

 

The holders of our common stock are entitled to one vote per share on each matter submitted to a vote at a meeting of shareholders.

 

There is no provision for cumulative voting with regard to the election of directors. This could prevent directors from being elected by a relatively small group of shareholders.

 

Dividend Rights

 

Holders of our common stock are entitled to receive any dividends our board of directors may declare on our common stock, subject to the prior rights of any preference stock. Our board of directors may declare dividends from funds legally available for this purpose.

 

Liquidation Rights

 

If we liquidate, dissolve or are wound up, then after payment of or provision for claims of creditors and after payment of any liquidation preferences to holders of any preference stock, the holders of our common stock will be entitled to participate equally and ratably, in proportion to the number of shares held, in our net assets available for distribution to holders of common stock.

 

Other Rights

 

The holders of our common stock have no preemptive rights to maintain their percentage of ownership in future offerings or sales of stock of SJI and no rights to convert their common stock into any other securities. Our common stock is not subject to any redemption or sinking fund provisions.

 

Preference Stock

 

Our board of directors has the authority, without other action by shareholders, to issue preference stock in one or more series.

 

Our board of directors has the authority to determine the terms of each series of preference stock, within the limits of our amended and restated articles of incorporation, our amended and restated by-laws and the laws of the state of New Jersey. These terms include the number of shares in a series and applicable dividend rights, liquidation preferences, terms of redemption, conversion rights and voting rights, if any.

 

 
 

 

Anti-Takeover Provisions of our Certificate of Incorporation, Bylaws and New Jersey law

 

Certain provisions of our Certificate of Incorporation, our Bylaws and New Jersey law could discourage, delay or prevent some transactions involving unsolicited acquisitions or changes of control of the Company. We believe that these provisions will enable us to develop our business in a manner that will foster our long-term growth without disruption caused by the threat of a takeover not deemed by our board of directors to be in the best interests of the Company, our shareholders and certain other constituents. However, such provisions could have the effect of discouraging third parties from making proposals involving an unsolicited acquisition or change of control of the Company, even when a majority of our shareholders might consider such proposals, if made, desirable. Such provisions also may have the effect of making it more difficult for third parties to cause the replacement of our current management without the assent of our board of directors. These provisions include:

 

• limitations on certain transactions (including mergers, consolidations, asset dispositions and securities issuances) with certain entities that beneficially own 5% or more of our capital stock;

 

• a requirement for the affirmative vote of the holders of at least 80% of the aggregate voting power of our outstanding common stock to amend the limitations on such transactions;

 

• authorization of our board of directors to issue common stock and preference stock from time to time in its discretion;

 

• authorization of our board of directors to establish one or more series or classes of undesignated preference stock, the terms of which can be determined by our board of directors at the time of issuance;

 

• noncumulative voting;

 

• authorization of our directors to fill any vacancies on our board of directors, including vacancies resulting from a board resolution to increase the number of directors; and

 

• advance notice procedures with respect to nominations of directors or proposals other than those adopted or recommended by our board of directors.

 

Transactions with Related Persons

 

Our Certificate of Incorporation prohibits us from engaging in certain transactions with certain “Related Persons”, as further described further below, including (i) any merger or consolidation, (ii) any sale, lease, exchange or other disposition of any substantial part of our assets or (iii) any issuance or transfer of any securities having voting power in exchange for securities, cash or other property unless (x) approved by the affirmative vote of the holders of at least 80% of the outstanding shares of all classes of our capital stock entitled to vote in the election of directors or (y) approved by our board of directors prior to the time that the Related Person became a Related Person. The restriction applies to any such transaction with a person who was a Related Person within the 12 months preceding the record date for determination of the shareholders entitled to notice of the transaction and to vote thereon.

 

A “Related Person” is defined for this purpose as any person (other than a corporation or any subsidiary of SJI) who is the beneficial owner, directly or indirectly, of 5% or more of the outstanding shares of our capital stock entitled to vote generally in the election of directors.

 

The provisions of our Certificate of Incorporation relating to transactions with Related Persons may be amended only by the affirmative vote of the holders of at least 80% of the aggregate voting power of our outstanding capital stock.

 

Anti-Takeover Effects of the New Jersey Shareholders Protection Act

 

We are subject to Section 14A:10A of the New Jersey Shareholders Protection Act. Subject to certain qualifications and exceptions, the statute prohibits an interested stockholder of a corporation from effecting a business combination with the corporation for a period of five years unless (i) the corporation’s board of directors approved the combination prior to the shareholder becoming an interested stockholder or (ii) the corporation’s board of directors approved the transaction or series of transactions which caused the person to become an interested stockholder before the person became an interested stockholder and any subsequent business combination with that interested stockholder is approved by independent members of the board of directors and the holders of a majority of the voting stock not beneficially owned by the interested stockholder. In addition, but not in limitation of the five-year restriction, if applicable, corporations covered by the New Jersey statute may not engage at any time in a business combination with any interested stockholder of that corporation unless the combination is approved by the board of directors prior to the interested stockholder’s stock acquisition date, the combination receives the approval of two-thirds of the voting stock of the corporation not beneficially owned by the interested stockholder or the combination meets minimum financial terms specified by the statute.

 

 
 

 

An “interested stockholder” is defined for this purpose to include any beneficial owner of 10% or more of the voting power of the outstanding voting stock of the corporation and any affiliate or associate of the corporation who within the prior five year period has at any time owned 10% or more of the voting power of the then outstanding stock of the corporation.

 

The term “business combination” is defined to include, among other things:

 

• the merger or consolidation of the corporation with the interested stockholder or any corporation that is or after the merger or consolidation would be an affiliate or associate of the interested stockholder;

 

• the sale, lease, exchange, mortgage, pledge, transfer or other disposition to an interested stockholder or any affiliate or associate of the interested stockholder of 10% or more of the corporation’s assets; or

 

• the issuance or transfer to an interested stockholder or any affiliate or associate of the interested stockholder of 5% or more of the aggregate market value of the stock of the corporation.

 

Authorized but Unissued Common Stock and Preference Stock

 

The authorized but unissued shares of our common stock and preference stock are available for future issuance without shareholder approval. Further, our board of directors can set the voting rights, redemption rights, conversion rights and other rights relating to any such preference stock and could issue such stock in either public or private transactions.

 

New Jersey law does not require shareholder approval for any issuance of authorized shares. However, the listing requirements of the New York Stock Exchange, which would apply to us so long as our common stock remains listed on the New York Stock Exchange, require shareholder approval of certain issuances equal to or exceeding 20% of the then outstanding voting power or then outstanding number of shares of our common stock.

 

We may issue additional shares for a variety of corporate purposes. We may engage in public or private offerings to raise additional capital or to facilitate corporate acquisitions. We may issue shares of common or preference stock to persons friendly to current management. Such an issuance may discourage, delay or prevent an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise, and thereby protect the continuity of our management. This could deprive our shareholders of opportunities to sell their shares of our stock at prices higher than prevailing market prices. Our board of directors could also use these shares to dilute the ownership of persons seeking to obtain control of the Company.

 

Number of Directors; Filling of Vacancies

 

Our Bylaws provide that our board of directors will have eleven directors. The size of the board of directors may be changed by a majority vote of the board of directors. Our Bylaws permit the board of directors to fill any new directorships it creates and any other vacancies. Accordingly, our board of directors may be able to prevent any shareholder from obtaining majority representation on our board of directors by increasing the size of the board of directors and filling the newly created directorships with its own nominees.

 

The provisions of our Bylaws relating to the number of directors and filling of vacancies may be amended only by the majority vote of the directors or the affirmative vote of the holders of at least 80% of the aggregate voting power of our outstanding capital stock.

 

Advance Notice Provisions

 

Our Bylaws provide that in order for a shareholder to nominate a director or bring other business before an annual meeting, the shareholder must give written notice, in proper form, to our Secretary (i) in the case of an annual meeting that is called for a date that is within 30 days before or after the anniversary date of the previous year’s annual meeting of shareholders, not less than 60 days nor more than 90 days prior to the anniversary date, (ii) in the case of an annual meeting that is called for a date that is not within 30 days before or after the anniversary date of the previous year’s annual meeting, not later than the close of business on the tenth day following the day on which notice of the date of the meeting was mailed or public disclosure of the date of the meeting was made, whichever comes first, and (iii) in the case of any special meeting of the shareholders, not less than 60 days nor more than 90 days prior to the date of such meeting.

 

 
 

 

Only persons who are nominated by, or at the direction of, our board of directors, or who are nominated by a shareholder who has given timely written notice, in proper form, to our Secretary prior to a meeting at which directors are to be elected, will be eligible for election as directors. The notice of any nomination for election as a director must set forth:

 

• the name and address of the shareholder who intends to make the nomination and of the person or persons to be nominated;

 

• the class and number of shares of the Company beneficially owned by the shareholder and any persons acting in concert with the shareholder;

 

• a description of all arrangements or understandings between the shareholder and each nominee and any other person or persons, naming such person or persons, pursuant to which the nomination or nominations are to be made by the shareholder;

 

• such other information regarding each nominee proposed by such shareholder as would have been required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission had each nominee been nominated, or intended to be nominated, by our board of directors; and

 

• the consent of each nominee to serve as a director if so elected.

 

The notice to bring any other matter a shareholder proposes to bring before a meeting of the shareholders must also set forth:

 

• a description of the proposal containing all material information relating thereto; and

 

• a representation that the shareholder is a holder of record of the stock of the Company entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to bring the business specified in the notice before the meeting.

 

The advance notice provisions may discourage, delay or prevent a person from bringing matters before a shareholder meeting. The provisions may provide enough time for us to begin litigation or take other steps to respond to these matters, or to prevent them from being acted upon.

 

Transfer Agent

 

Broadridge Corporate Issuer Solutions, Inc., serves as our transfer agent and registrar.

 

Item 9.01. Financial Statements and Exhibits.

 

Exhibit No. Description
3.1 Certificate of Incorporation of South Jersey Industries, Inc., dated November 10, 1969.
3.2 Certificate of Amendment of the Certificate of Incorporation of South Jersey Industries, Inc., dated April 21, 1983.
3.3 Certificate of Amendment of the Certificate of Incorporation of South Jersey Industries, Inc., dated April 19, 1984.
3.4 Certificate of Amendment of the Certificate of Incorporation of South Jersey Industries, Inc., dated April 23, 1987.
3.5 Certificate of Amendment of the Certificate of Incorporation of South Jersey Industries, Inc., dated April 23, 1987.
3.6 Certificate of Amendment of Certificate of Incorporation of South Jersey Industries, Inc., dated October 7, 1996.
3.7 Certificate of Amendment of the Certificate of Incorporation of South Jersey Industries, Inc., dated May 5, 2005.
3.8 Certificate of Amendment of the Certificate of Incorporation of South Jersey Industries, Inc., dated April 28, 2009.
3.9 Certificate of Amendment to the Certificate of Incorporation of South Jersey Industries, Inc., dated June 2014.
3.10 Certificate of Amendment to the Certificate of Incorporation of South Jersey Industries, Inc. Increasing the Number of Authorized Shares, dated February 27, 2015.
3.11 Bylaws of South Jersey Industries, Inc. as amended and restated through April 29, 2016. (Incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed May 3, 2016.)

 

 
 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

    SOUTH JERSEY INDUSTRIES, INC.
     
Date:  May 10, 2016   /s/ Gina Merritt-Epps
   

Gina Merritt-Epps, Esq. 

Senior Vice President, General Counsel & Corporate Secretary 

 

 

 
 

 

Exhibit 3.1

 

CERTIFICATE OF INCORPORATION

 

OF

 

SOUTH JERSEY INDUSTRIES, INC.

 

To: The Secretary of State
State of New Jersey

 

THE UNDERSIGNED, for the purpose of forming a corporation pursuant to the provisions of Title 14A of the New Jersey Business Corporation Act does hereby execute the following Certificate of Incorporation:

 

FIRST: The name of the corporation is SOUTH JERSEY INDUSTRIES, INC.

 

SECOND: The purpose or purposes for which the corporation is organized are:

 

To engage in any activity within the purposes for which corporations may be organized under applicable New Jersey law.

 

THIRD: The aggregate number of shares which the corporation shall have authority to issue is 7,500,000 shares, divided into two classes consisting of 5,000,000 shares of Common Stock (“Common Stock”) with par value of $2.50 per share and 2,500,000 shares of Preference Stock (“Preference Stock”) without par value.

 

A.            Preference Stock.

 

1.            ISSUE IN SERIES. Preference Stock may be issued from time to time in one or more series, each such series to have the terms stated herein and in the resolution of the board of directors providing for its issue. All shares of any one series of Preference Stock shall be identical, but shares of different series of Preference Stock need not be identical or rank equally except insofar as provided by law or herein.

 

 
 

 

2.            CREATION OF SERIES. The board of directors shall have authority by resolution to cause to be created one or more series of Preference Stock, and to determine and fix with respect to each series prior to the issuance of any shares of the series to which such resolution relates:

 

(a)            The distinctive designation of the series and the number of shares which shall constitute the series, which number may be increased or decreased (but not below the number of shares then outstanding) from time to time by action of the board of directors;

 

(b)            The dividend rate and the times of payment of dividends on the shares of the series, whether dividends shall be cumulative, and, if so, from what date or dates;

 

(c)            The price or prices at which, and the terms and conditions on which, the shares of the series may be redeemed at the option of the corporation;

 

(d)            Whether or not the shares of the series shall be entitled to the benefit of a retirement or sinking fund to be applied to the purchase or redemption of such shares and, if so entitled, the amount of such fund and the terms and provisions relative to the operation thereof;

 

(e)            Whether or not the shares of the series shall be convertible into, or exchangeable for, any other shares of stock of the corporation or other securities, and if so convertible or exchangeable, the conversion price or prices, or the rates of exchange, and any adjustments thereof, at which such conversion or exchange may be made, and any other terms and conditions of such conversion or exchange;

 

(f)            The rights of the shares of the series in the event of voluntary or involuntary liquidation, dissolution or winding up of the corporation;

 

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(g)            Whether or not the shares of the series shall have priority over or parity with or be junior to the shares of any other series or class in any respect or shall be entitled to the benefit of limitations restricting the issuance of shares of any other series or class having priority over or being on a parity with the shares of such series in any respect, or restricting the payment of dividends on or the making of other distributions in respect of shares of any other series or class ranking junior to the shares of the series as to dividends or assets, or restricting the purchase or redemption of the shares of any such junior series or class, and the terms of any such restriction, or any other restriction with respect to shares of any other series or class ranking junior to the shares of the series in any respect;

 

(h)            Whether the series shall have voting rights, in addition to any voting rights provided by law and if so, the terms of such voting rights; and

 

(i)            Any other preferences, qualifications, privileges, options and other relative or special rights and limitations of that series.

 

3.            PREFERENCE ON LIQUIDATION. In the event of the voluntary or involuntary liquidation, dissolution or winding up of the corporation, holders of each series of Preference Stock shall be entitled to receive the amount fixed for such series plus, in the case of any series on which dividends shall have been determined by the board of directors to be cumulative, an amount equal to all dividends accumulated and unpaid thereon to the date of final distribution whether or not earned or declared. If the assets of the corporation are not sufficient to pay such amounts in full, holders of all shares of Preference Stock shall participate in the distribution of assets ratably in proportion to the full amounts to which they are entitled or in such order of priority if any, as shall have been fixed in the resolution or resolutions providing for the issue of series of Preference Stock. Neither the merger nor consolidation of the corporation into or with any other corporation, nor a sale, transfer or lease of all or part of its assets, shall be deemed a liquidation, dissolution or winding up of the corporation within the meaning of this paragraph.

 

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4.            REDEMPTION. The corporation at the option of the board of directors may redeem all or part of the shares of any series of Preference Stock on the terms and conditions fixed for such series. In case of the redemption of less than all outstanding shares of any series of Preference Stock, the shares to be redeemed shall be selected by lot or in such other manner as the board of directors determines.

 

5.            VOTING RIGHTS. Except as otherwise required by law or as otherwise determined by the board of directors as to the shares of any series of Preference Stock prior to the issuance of any such shares, the holders of Preference Stock shall have no voting rights and shall not be entitled to any notice of any meeting of shareholders.

 

B.            Common Stock

 

1.            DIVIDENDS. Holders of Common Stock shall be entitled to receive such dividends as may be declared by the board of directors, except that the corporation will not declare, pay or set apart for payment any dividend on shares of Common Stock (other than dividends payable in Common Stock), or directly or indirectly make any distribution on, redeem, purchase or otherwise acquire any such shares, if at the time of such action the corporation is in default with respect to any dividend due and payable on or any sinking or purchase fund requirement relating to any shares of Preference Stock, provided that the provisions of this paragraph shall not prevent the payment of any dividend within sixty days after the declaration thereof if such declaration, when made, complied with the provisions hereof.

 

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2.            DISTRIBUTION OF ASSETS. In the event of the voluntary or involuntary liquidation, dissolution or winding up of the corporation, holders of Common Stock shall be entitled to receive pro rata all of the remaining assets of the corporation available for distribution to its shareholders after all amounts to which the holders of Preference Stock are entitled have been paid or set aside in cash for payment.

 

3.            VOTING RIGHTS. Holders of Common Stock shall have general rights to vote for all purposes on the basis of one vote for each share held of record.

 

FOURTH: The address of the corporation’s initial registered office is 2001 Atlantic Avenue, Atlantic City, N. J., 08404, and the name of the corporation’s initial registered agent at such address is Edgar S. Keepers, Jr.

 

FIFTH: The number of directors constituting the first board of directors shall be three (3); and the names and addresses of the persons who are to serve as such directors are:

 

Name Address
   
William A. Gemmel

2001 Atlantic Avenue 

Atlantic City, N. J. 08404 

   
Edgar S. Keepers, Jr.

2001 Atlantic Avenue 

Atlantic City, N. J. 08404 

   
Glendon H. Harris

2001 Atlantic Avenue

Atlantic City, N. J. 08404 

 

SIXTH: The name and address of the incorporator is:

 

Name Address
   
Robert C. Koury

619 Guarantee Trust Building 

Atlantic City, N. J. 08401 

 

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IN WITNESS WHEREOF, the undersigned incorporator of the above named corporation has hereunto signed this Certificate of Incorporation this 10th day of November, 1969.

 

  /s/ Robert C. Koury
  Robert C. Koury

 

 

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Exhibit 3.2

 

SOUTH JERSEY INDUSTRIES, INC.

 

Certificate of Amendment of the
Certificate of Incorporation

 

To: The Secretary of State of
the State of New Jersey

 

Pursuant to the provisions of Section 14A:9–2 (4) and Section 14A:9–4 (3) of Title 14A, Corporations, General, of the New Jersey Statutes, the undersigned corporation executes the following Certificate of Amendment of its Certificate of Incorporation:

 

1. The name of the corporation is South Jersey Industries, Inc.

 

2. The amendment to the Certificate of Incorporation, set forth in full in the following resolution, was duly approved by the directors of the corporation on January 21, 1983 and was duly adopted by the shareholders of the corporation on April 21, 1983:

 

RESOLVED, that the Certificate of Incorporation of the Company be amended to include new Articles SEVENTH, EIGHTH, NINTH and TENTH thereof, to read in their entirety as follows:

 

SEVENTH: The directors of the corporation shall be divided into three classes: Class I, Class II and Class III. Such classes shall be as nearly equal in number as possible. The term of office of the initial Class I directors shall expire at the Annual Meeting of Shareholders in 1984; the term of office of the initial Class II directors shall expire at the Annual Meeting of Shareholders in 1985; and the term of office of the initial Class III directors shall expire at the Annual Meeting of Shareholders in 1986; or in each case thereafter when their respective successors are elected and have qualified or upon their earlier death, resignation or removal. At each annual election held after the initial election of directors according to classes, the directors chosen to succeed those whose terms then expire shall be identified as being of the same class as the directors they succeed and shall be elected for a term expiring at the third succeeding annual meeting of shareholders or in each case thereafter when their respective successors are elected and have qualified or upon their earlier death, resignation or removal. If the number of directors is changed, any increase or decrease in directors shall be apportioned among the classes so as to maintain all classes as nearly equal in number as possible.

 

EIGHTH: (1) Except as otherwise expressly provided in Paragraph 2 of this Article EIGHTH:

 

(a)     any merger or consolidation of the corporation with or into any other person or any merger of any other person into the corporation;

 

 
 

 

(b)     any sale, lease, exchange or other disposition by the corporation, whether or not in partial or complete liquidation, of all or any substantial part of the assets of the corporation to or with any other person; or

 

(c)     any issuance or transfer by the corporation or any subsidiary of the corporation of any securities of the corporation having voting power (whether generally or upon the happening of any contingency), or any securities or instruments convertible into securities having voting power, to any other person in exchange for securities, cash or other property or a combination thereof,

 

shall require approval by the affirmative vote of the holders of at least 80% of the outstanding shares of all classes of capital stock of the corporation entitled to vote generally in the election of directors, considered for such purpose as one class, if, in any such case, as of the record date for the determination of shareholders entitled (by reason of this Article EIGHTH or otherwise) to notice thereof and to vote thereon, or at any time within the 12-month period preceding such record date, such other person is or was a Related Person. Such vote shall be in addition to any class vote to which any class of stock of the corporation may be entitled.

 

(2)     The provisions of paragraph (1) of this Article EIGHTH shall not apply to any transaction described in clause (a), (b) or (c) of such paragraph (1) if the Board of Directors of the corporation shall by resolution have approved, prior to the time that such Related Person shall have become a Related Person, a memorandum of understanding or an agreement with such Related Person setting forth, at least generally, the substance of the terms upon which such transaction shall thereafter be consummated.

 

(3)     For purposes of this Article EIGHTH:

 

(a)     any specified person shall be deemed to be the “beneficial owner” or to “beneficially own” any securities (i) as to which such person or any affiliate or associate of such person has the right, alone or with others, to direct the manner of exercise of the voting rights of such securities, whether or not such person or any affiliate or associate of such person has any interest in any income or distribution with respect to such securities, or (ii) which such specified person or any of its affiliates or associates has the right to acquire immediately or at some future date pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise, or (iii) which are beneficially owned, within the meaning of clause (i) or (ii) hereof, by any other person with which such specified person or any of its affiliates or associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of such securities;

 

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(b)     a “person” is any individual, corporation, partnership, limited partnership, joint venture, sole proprietorship or other legal entity;

 

(c)     an “affiliate” of a specified person is any person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the specified person;

 

(d)     an “associate” of a specified person is (i) any person of which such specified person is an officer, director or partner or is, directly or indirectly, the beneficial owner of 5% or more of any class of equity securities, (ii) any person that bears to the specified person the relationship described in clause (i), (iii) and trust or estate in which such specified person has a substantial beneficial interest or as to which such specified person serves as a trustee or in a similar fiduciary capacity, (iv) any relative or spouse of a specified person or any person described in clause (ii), or any relative of such spouse, except relatives more remote that first cousin, or (v) any other member or partner in a partnership, limited partnership, syndicate or other group of which the specified person is a member or partner and which is acting together for the purpose of acquiring, holding or disposing of any interest in the corporation;

 

(e)     a “Related Person” is any person (other than the corporation or any subsidiary) who is the beneficial owner, directly or indirectly, of 5% or more of the outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors, considered for this purpose as one class; and

 

(f)     a “subsidiary” is any corporation directly or indirectly, through stock ownership or otherwise, which is controlled by South Jersey Industries, Inc.

 

(v)     The Board of Directors of the corporation shall have the power and duty to determine for the purposes of this Article EIGHTH, on the basis of information then known to it, (a) whether any person is or was, at any relevant time, the beneficial owner, directly or indirectly, of 5% or more of the outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors or is or was an affiliate, an associate or a subsidiary of any person (including, without limitation, whether any person “controls” or is “controlled by” or under “common control with” any other person for the purposes of the definitions set forth in paragraph (3) of this Article EIGHTH), and (b) whether any proposed sale, lease, exchange or other disposition of part of the assets of the corporation involves a substantial part of the assets of the corporation. Any such determination made by the Board of Directors shall be conclusive and binding for all purposes of this Article EIGHTH.

 

(5)     For purposes of this Article EIGHTH, shares of capital stock of the corporation subject to options, warrants or conversion rights held by any person or its affiliates or associates shall be deemed outstanding for the purpose of computing the percentage of outstanding shares of capital stock of the corporation beneficially owned by such person (and any such affiliate or associate) but shall not be deemed outstanding for the purpose of computing the percentage of such shares beneficially owned by any other person.

 

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NINTH: The Board of Directors of the corporation, when evaluating any proposal from another party to (i) make a tender offer for securities of the corporation; (ii) merge or consolidate the corporation with another corporation; (iii) purchase or otherwise acquire substantially all of the properties or assets of the corporation; (iv) engage in any transaction of the sort specified in Paragraph (1) of Article EIGHTH of this Certificate of Incorporation; or (v) engage in any other transaction having a similar effect upon the properties, operations or control of the corporation, shall in connection with the exercise of its judgment in determining what is in the best interests of the corporation and its shareholders, give due consideration to the following:

 

(1) the character, integrity, business philosophy and financial status of the other party or parties to the transaction;

 

(2) the consideration to be received by the corporation or its shareholders in connection with such transaction, as compared to:

 

(a) the current market price or value of the corporation’s properties or securities;

 

(b) the estimated future value of the corporation, its properties or securities;

 

(c) such other measures of the value of the corporation, its properties or securities as the directors may deem appropriate;

 

(3) the projected social, legal and economic effects of the proposed action or transaction upon the corporation, its employees, suppliers and customers and the communities in which the corporation does business;

 

(4) the general desirability of the continuance of the corporation as an independent entity; and

 

(5) such other factors as the Board of Directors may deem relevant.

 

TENTH: Any provision in this Certificate of Incorporation or in the Bylaws of the corporation to the contrary notwithstanding, no provisions of Articles SEVENTH, EIGHTH, NINTH or TENTH of this Certificate of Incorporation, or any provisions of Sections 2.1, 2.3, 2.5 or 6.2 of the corporation’s Bylaws, shall be altered, amended, supplemented or repealed by the shareholders of the corporation, and no provision of the Bylaws or of this Certificate of Incorporation inconsistent with such provisions shall be adopted by the shareholders of the corporation, except by the affirmative vote of the holders of at least 80% of the outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors, considered for this purpose as one class.

 

4
 

 

3. At the time of the action of the shareholders:

 

(a) The total stock outstanding was 2,664,924 shares of Common Stock.

 

(b) The number of shares entitled to vote was 2,645,421.

 

4. In the action take by the shareholders:

 

(a) The number of shares voted in favor of the amendment was 1,877,056.

 

(b) The number of shares voted against the amendment was 89,209.

 

  SOUTH JERSEY INDUSTRIES, INC.
 
     
  By:   /s/ William F. Ryan, President
    William F. Ryan, President

 

 

Dated: April 21, 1983. 

 

5
 

 

Exhibit 3.3

 

SOUTH JERSEY INDUSTRIES, INC.

 

Certificate of Amendment of the
Certificate of Incorporation

 

To: The Secretary of State of
the State of New Jersey

 

Pursuant to the provisions of Section 14A:9–2 (4) and Section 14A:9–4 (3) of Title 14A, Corporations, General, of the New Jersey Statutes, the undersigned corporation executes the following Certificate of Amendment of its Certificate of Incorporation:

 

1. The name of the corporation is South Jersey Industries, Inc.

 

2. The amendment to the Certificate of Incorporation, which is set forth in full in the following resolution, was duly adopted by the shareholders of the corporation on April 19, 1984:

 

RESOLVED, That the first paragraph of Article Third of the Certificate of Incorporation of the Company be amended to read in its entirety as follows:

 

THIRD: The aggregate number of shares which the corporation shall have authority to issue is 10,000,000 shares, divided into two classes consisting of 7,500,000 shares of Common Stock (“Common Stock”), of the par value of $2.50 per share, and 2,500,000 shares of Preference Stock (“Preference Stock”), without par value.

 

3. At the time of the action of the shareholders:

 

(a) The total outstanding stock of the Company consisted of ___________ shares of Common Stock.

 

(b) The number of shares entitled to vote was ____________.

 

4. In the action taken by the shareholders:

 

(a) The number of such shares voted in favor of the amendment was ___________.

 

(b) The number of such shares voted against the amendment was __________.

 

  SOUTH JERSEY INDUSTRIES, INC.
   
 
  By:   /s/ William F. Ryan
    William F. Ryan, President

 

 

Dated: April 19, 1984

 

 
 

 

 

Exhibit 3.4

 

SOUTH JERSEY INDUSTRIES, INC.

 

Certificate of Amendment of the
Certificate of Incorporation

 

To: The Secretary of State of
the State of New Jersey

 

Pursuant to the provisions of Section 14A:9–2 (4) and Section 14A:9–4 (3) of Title 14A, Corporations, General, of the New Jersey Statutes, the undersigned corporation executes the following Certificate of Amendment of its Certificate of Incorporation.

 

1. The name of the corporation is South Jersey Industries, Inc. (“Company”).

 

2. The amendment to the Certificate of Incorporation, which is set forth in full in the following resolution, was duly adopted by the shareholders of the Company on April 23, 1987:

 

RESOLVED, That the Certificate of Incorporation of the Company be amended by adding a new Article ELEVENTH, reading in its entirety as follows:

 

ELEVENTH: No director or officer of the corporation shall be personally liable to the corporation or its shareholders for damages for breach of any duty owed to the corporation or its shareholders, except that this provision shall not relieve a director or officer from liability for any breach of duty based on an act or omission (a) in breach of the director’s or officer’s duty of loyalty to the corporation or its shareholders, (b) not in good faith or involving a knowing violation of law or (c) resulting in the receipt by the director or officer of an improper personal benefit. This Article shall not apply to acts or omissions occurring prior to its effectiveness. No amendment to, expiration of or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any director or officer of the corporation for or with respect to any acts or omissions of such director or officer occurring prior to such amendment, expiration or repeal.

 

3. At the time of the action of the shareholders:

 

(a) The total outstanding stock of the Company consisted of 3,781,856 shares of Common Stock.

 

(b) The number of such shares entitled to vote was 3,781,277.

 

4. In the action take by the shareholders:

 

(c) The number of such shares voted in favor of the amendment was 2,692,481.

 

 
 

 

(d) The number of such shares voted against the amendment was 277,714.

 

Dated: April 23, 1987

 

  SOUTH JERSEY INDUSTRIES, INC.
   
     
  By:   /s/ William F. Ryan
    William F. Ryan, President

  

2
 

 

Exhibit 3.5

 

SOUTH JERSEY INDUSTRIES, INC.

 

Certificate of Amendment of the
Certificate of Incorporation

 

To: The Secretary of State of
the State of New Jersey

 

Pursuant to the provisions of Section 14A:9–2 (4) and Section 14A:9–4 (3) of Title 14A, Corporations, General, of the New Jersey Statutes, the undersigned corporation executes the following Certificate of Amendment of its Certificate of Incorporation.

 

1. The name of the corporation is South Jersey Industries, Inc. (“Company”).

 

2. The amendment to the Certificate of Incorporation, which is set forth in full in the following resolution, was duly adopted by the shareholders of the Company on April 23, 1987:

 

RESOLVED, That the Certificate of Incorporation of the Company, as heretofore amended, be further amended to (a) change and reclassify each issued share of Common Stock (including any treasury stock), par value $2.50 per share, on the date such amendment becomes effective into two shares of Common Stock, par value $1.25 per share, thus effecting a two-for-one stock split, and (b) increase and reclassify the authorized Common Stock from 7,500,000 shares, par value $2.50 per share, to 20,000,000 shares, par value $1.25 per share; and that such amendments be effected by filing a Certificate of Amendment to such Certificate of Incorporation, as heretofore amended, in accordance with the laws of New Jersey which (i) provides that on the effective date stated in such Certificate of Amendment (which shall be a date not later than 30 days after the date of such filing) each issued share of Common Stock (including any treasury stock), par value $2.50 per share, shall be changed and reclassified into two shares of Common Stock, par value $1.25 per share, and (ii) amends the first paragraph of Article THIRD of such Certificate of Incorporation to read in its entirety as follows:

 

THIRD: The aggregate number of shares which the corporation shall have authority to issue is 22,500,000 shares, divided into two classes consisting of 20,000,000 shares of Common Stock (“Common Stock”), of the par value of $1.25 per share, and 2,500,000 shares of Preference Stock (“Preference Stock”), without par value.

 

3. At the time of the action of the shareholders:

 

(a) The total outstanding stock of the Company consisted of 3,781,856 shares of Common Stock.

 

(b) The number of such shares entitled to vote was 3,781,277.

 

 
 

 

4. In the action take by the shareholders:

 

(c) The number of such shares voted in favor of the amendment was 2,796,163.

 

(d) The number of such shares voted against the amendment was 197,539.

 

5. Upon the effective date of this Certificate of Amendment, each of the 3,781,856 issued shares of Common Stock of the Company, par value $2.50 per share (including any shares thereof held in the treasury of the Company), shall be changed and reclassified into two shares of Common Stock of the Company, par value $1.25 per share, or an aggregate of 7,563,712 issued shares, and the aggregate amount of capital of the Company represented by said 3,781,856 shares of Common Stock, par value $2.50 per share, shall be and become the capital represented by said 7,563,712 shares of Common Stock, par value $1.25 per share. Each stock certificate of the Company issued at the time of the effective date of this Certificate of Amendment that represents immediately prior thereto one or more shares of Common Stock of the Company, par value $2.50 per share, shall, upon such effective date, represent the same number of shares of Common Stock of the Company, par value $1.25 per share. There shall then be issued to and in the name of each holder of such a certificate an additional certificate for the same number of shares of Common Stock of the Company, par value $1.25 per share, so that each such holder will hold certificates representing two shares of Common Stock of the Company, par value $1.25 per share, immediately after such effective date for each one share of Common Stock of the Company, par value $2.50 per share, represented by certificates held by him immediately prior to such effective date.

 

6. The effective date of the foregoing amendment to the Certificate of Incorporation of the Company shall be the close of business on May 1, 1987.

 

Dated: April 23, 1987 

 

  SOUTH JERSEY INDUSTRIES, INC.
   
     
  By:   /s/ William F. Ryan
    William F. Ryan, President

 

 

2
 

 

Exhibit 3.6

 

SOUTH JERSEY INDUSTRIES, INC.

 

CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION

 

Pursuant to the provisions of Section 14A:7-2(2) of the New Jersey Business Corporation Act, the undersigned Corporation executes the following Certificate of Amendment to its Certificate of Incorporation.

 

1.             The name of the Corporation is SOUTH JERSEY INDUSTRIES, INC.

 

2.             The following resolution, establishing and designating a series of shares and fixing and determining the relative rights and preferences thereof was duly adopted by the Board of Directors of the Corporation on the 20th day of September, 1996, pursuant to authority vested in it by the Certificate of Incorporation:

 

RESOLVED, that pursuant to the authority vested in the Board of Directors of the Corporation by the Certificate of Incorporation the Board of Directors does hereby provide for the issue of a series of Preference Stock, without par value, of the Corporation, to be designated “Series A Junior Participating Preference Stock” (hereinafter referred to as the “Series A Preference Stock”), initially consisting of 15,000 shares, and to the extent that the designations, relative rights, preferences and limitations of the Series A Preference Stock are not stated and expressed in the Certificate of Incorporation, does hereby fix and herein state and express such designations, relative rights, preferences and limitations thereof, as follows (all terms used herein which are defined in the Certificate of Incorporation shall be deemed to have the meanings provided therein):

 

Section 1.              Designation and Amount. The shares of such series shall be designated as “Series A Junior Participating Preference Stock” and the number of shares constituting such series shall be 15,000. Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of Series A Junior Participating Preference Stock to a number less than the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible into Series A Junior Participating Preference Stock.

 

Section 2.              Dividends and Distributions.

 

(A)             Subject to the prior and superior rights of the holders of any shares of any series of Preference Stock ranking prior and superior to the shares of Series A Junior Participating Preference Stock with respect to dividends, the holders of shares of Series A Junior Participating Preference Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on March 31, June 30, September 30 and December 31 in each year (each such date being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Junior Participating Preference Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $10 or (b) subject to the provision for adjustment hereinafter set forth, 1,000 times the aggregate per share amount of all cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock, par value $1.25 per share, of the Corporation (the “Common Stock”) since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A Junior Participating Preference Stock. In the event the Corporation shall at any time after September 20, 1996 (the “Rights Declaration Date”) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount to which holders of shares of Series A Junior Participating Preference stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.

 

 
 

 

(B)             The Corporation shall declare a dividend or distribution on the Series A Junior Participating Preference Stock as provided in paragraph (A) above immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $10 per share on the Series A Junior Participating Preference Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.

 

(C)             Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Junior Participating Preference Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series A Junior Participating Preference Stock, unless the date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Junior Participating Preference Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Junior Participating Preference Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series A Junior Participating Preference Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be no more than 30 days prior to the date fixed for the payment thereof.

 

2
 

 

Section 3.              Voting Rights. The holders of shares of Series A Junior Participating Preference Stock shall have the following voting rights:

 

(A)             Subject to the provision for adjustment hereinafter set forth, each share of Series A Junior Participating Preference Stock shall entitle the holder thereof to 1,000 votes on all matters submitted to a vote of the shareholders of the Corporation. In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the number of votes per share to which holders of shares of Series A Junior Participating Preference Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of common Stock that were outstanding immediately prior to such event.

 

(B)             Except as otherwise provided herein or by law, the holders of shares of Series A Junior Participating Preference Stock and the holders of shares of Common Stock shall vote together as one class on all matters submitted to a vote of shareholders of the Corporation.

 

(C)             (i)             If at any time dividends on any Series A Junior Participating Preference Stock shall be in arrears in an amount equal to six (6) quarterly dividends thereon, the occurrence of such contingency shall mark the beginning of a period (herein called a “default period”) which shall extend until such time when all accrued and unpaid dividends for all previous quarterly dividend periods and for the current quarterly dividend period on all shares of Series A Junior Participating Preference Stock then outstanding shall have been declared and paid or set apart for payment. During each default period, all holders of Preference Stock (including holders of the Series A Junior Participating Preference Stock) with dividends in arrears in an amount equal to six (6) quarterly dividends thereon, voting as a class, irrespective of series, shall have the right to elect two (2) Directors.

 

(ii)             During any default period, such voting right of the holders of Series A Junior Participating Preference Stock may be exercised initially at a special meeting called pursuant to subparagraph (iii) of this Section 3(C) or at any annual meeting of shareholders, and thereafter at annual meetings of shareholders, provided that neither such voting right nor the right of the holders of any other series of Preference Stock, if any, to increase, in certain cases, the authorized number of Directors shall be exercised unless the holders of ten percent (10%) in number of shares of Preference Stock outstanding shall be present in person or by proxy. The absence of a quorum of the holders of Common Stock shall not affect the exercise by the holders of Preference Stock of such voting right. At any meeting at which the holders of Preference Stock shall exercise such voting right initially during an existing default period, they shall have the right, voting as a class, to elect Directors to fill such vacancies, if any, in the Board of Directors as may then exist up to two (2) Directors or, if such right is exercised at an annual meeting, to elect two (2) Directors. If the number which may be so elected at any special meeting does not amount to the required number, the holders of the Preference Stock shall have the right to make such increase in the number of Directors as shall be necessary to permit the election by them of the required number. After the holders of the Preference Stock shall have exercised their right to elect Directors in any default period and during the continuance of such period, the number of Directors shall not be increased or decreased except by vote of the holders of Preference Stock as herein provided or pursuant to the rights of any equity securities ranking senior to or pari passu with the Series A Junior Participating Preference Stock.

 

3
 

 

(iii)             Unless the holders of Preference Stock shall, during an existing default period, have previously exercised their right to elect Directors, the Board of Directors may order, or any shareholder or shareholders owning in the aggregate not less than ten percent (10%) of the total number of shares of Preference Stock outstanding, irrespective of series, may request, the calling of special meeting of the holders of Preference Stock, which meeting shall thereupon be called by the President, a Vice-President or the Secretary of the Corporation. Notice of such meeting and of any annual meeting at which holders of Preference Stock are entitled to vote pursuant to this paragraph (C)(iii) shall be given to each holder of record of Preference Stock by mailing a copy of such notice to him at his last address as the same appears on the books of the Corporation. Such meeting shall be called for a time not earlier than 20 days and not later than 60 days after such order or request or in default of the calling of such meeting within 60 days after such order or request, such meeting may be called on similar notice by any shareholder or shareholders owning in the aggregate not less than ten percent (10%) of the total number of shares of Preference Stock outstanding. Notwithstanding the provisions of this paragraph (C)(iii), no such special meeting shall be called during the period within 60 days immediately preceding the date fixed for the next annual meeting of the shareholders.

 

(iv)             In any default period, the holders of Common Stock, and other classes of stock of the Corporation if applicable, shall continue to be entitled to elect the whole number of Directors until the holders of Preference Stock shall have exercised their right to elect two (2) Directors voting as a class, after the exercise of which right (x) the Directors so elected by the holders of Preference Stock shall continue in office until their successors shall have been elected by such holders or until the expiration of the default period, and (y) any vacancy in the Board of Directors may (except as provided in paragraph (C)(ii) of this Section 3) be filled by vote of a majority of the remaining Directors theretofore elected by the holders of the class of stock which elected the Director whose office shall have become vacant. References in this paragraph (C) to Directors elected by the holders of a particular class of stock shall include Directors elected by such Directors to fill vacancies as provided in clause (y) of the foregoing sentence.

 

4
 

 

(v)             Immediately upon the expiration of a default period, (x) the right of the holders of Preference Stock as a class to elect Directors shall cease, (y) the term of any Directors elected by the holders of Preference Stock as a class shall terminate, and (z) the number of Directors shall be such number as may be provided for in the articles of incorporation or by-laws irrespective of any increase made pursuant to the provisions of paragraph (C)(ii) of this Section 3 (such number being subject, however, to change thereafter in any manner provided by law or in the articles of incorporation or by-laws). Any vacancies in the Board of Directors effected by the provisions of clauses (y) and (z) in the preceding sentence may be filled by a majority of the remaining Directors.

 

(D)             Except as set forth herein, holders of Series A Junior Participating Preference Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action.

 

Section 4.              Certain Restrictions.

 

(A)             Whenever quarterly dividends or other dividends or distributions payable on the Series A Junior Participating Preference Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Junior Participating Preference Stock outstanding shall have been paid in full, the Corporation shall not

 

(i)             declare or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating Preference Stock;

 

(ii)             declare or pay dividends on or make any other distributions on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Junior Participating Preference Stock, except dividends paid ratably on the Series A Junior Participating Preference Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled;

 

(iii)            redeem or purchase or otherwise acquire for consideration shares of any stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Junior Participating Preference Stock, provided that the corporation may at any time redeem, purchase or otherwise acquire shares of any such parity stock in exchange for shares of any stock of the Corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Junior Participating Preference Stock; or

 

5
 

 

(iv)            purchase or otherwise acquire for consideration any shares of Series A Junior Participating Preference Stock, or any shares of stock ranking on a parity with the Series A Junior Participating Preference Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes.

 

(B)             The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner.

 

Section 5.              Reacquired Shares. Any shares of Series A Junior Participating Preference Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preference Stock and may be reissued as part of a new series of Preference Stock to be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein.

 

Section 6.             Liquidation, Dissolution or Winding Up.

 

(A)             Upon any liquidation (voluntary or otherwise), dissolution or winding up of the Corporation, no distribution shall be made to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating Preference Stock unless, prior thereto, the holders of shares of Series A Junior Participating Preference Stock shall have received $10 per share, plus an amount equal to accrued and unpaid dividends and distribution thereon, whether or not declared, to the date of such payment (the “Series A Liquidation Preference”). Following the payment of the full amount of the Series A Liquidation Preference, no additional distributions shall be made to the holders of shares of Series A Junior Participating Preference Stock unless, prior thereto, the holders of shares of Common Stock shall have received an amount per share (the “Common Adjustment”) equal to the quotient obtained by dividing (i) the Series A Liquidation Preference by (ii) 1,000 (as appropriately adjusted as set forth in subparagraph C below to reflect such events as stock splits, stock dividends and recapitalizations with respect to the Common Stock) (such number in clause (ii), the “Adjustment Number”). Following the payment of the full amount of the Series A Liquidation Preference and the Common Adjustment in respect of all outstanding shares of Series A Junior Participating Preference Stock and Common Stock, respectively, holders of Series A Junior Participating Preference Stock and holders of shares of Common Stock shall receive their ratable and proportionate share of the remaining assets to be distributed in the ratio of the Adjustment Number to 1 with respect to such Preference Stock and Common Stock, on a per share basis, respectively.

 

6
 

 

(B)             In the event, however, that there are not sufficient assets available to permit payment in full of the Series A Liquidation Preference and the liquidation preferences of all other series of preference stock, if any, which rank on a parity with the Series A Junior Participating Preference Stock, then such remaining assets shall be distributed ratably to the holders of such parity shares in proportion to their respective liquidation preferences. In the event, however, that there are not sufficient assets available to permit payment in full of the Common Adjustment, then such remaining assets shall be distributed ratably to the holders of Common Stock.

 

(C)             In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the Adjustment Number in effect immediately prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.

 

Section 7.              Consolidation, Merger, etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of Series A Junior Participating Preference Stock shall at the same time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series A Junior Participating Preference Stock shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.

 

Section 8.              No Redemption. The shares of Series A Junior Participating Preference Stock shall not be redeemable.

 

Section 9.              Ranking. The Series A Junior Participating Preference Stock shall rank junior to all other series of the Corporation’s Preference Stock as to the payment of dividends and the distribution of assets, unless the terms of any such series shall provide otherwise.

 

7
 

 

Section 10.            Amendment. The Certificate of Incorporation of the Corporation shall not be further amended in any manner which would materially alter or change the powers, preferences or special rights of the Series A Junior Participating Preference Stock so as to affect them adversely without the affirmative vote of the holders of a majority or more of the outstanding shares of Series A Junior Participating Preference Stock, voting separately as a class.

 

Section 11.            Fractional Shares. Series A Junior Participating Preference Stock may be issued in fractions of a share which shall entitle the holder, in proportion to such holders fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series A Junior Participating Preference Stock.

 

3.             The resolution was adopted by the Board of Directors at a meeting duly called and held on September 20, 1996, at which a quorum was present throughout.

 

4.               The Certificate of Incorporation of the Corporation is amended so that the designation and number of shares of the class and series acted upon in the resolution, and the relative rights, preferences and limitations of such class and series are as stated in the resolution.

 

IN WITNESS WHEREOF, this Certificate of Amendment is executed on behalf of the Corporation by its President and attested by its Secretary this 7th day of October, 1996.

  

    SOUTH JERSEY INDUSTRIES, INC.
         
         
      By:   /s/ William F. Ryan
         
         
ATTEST:    
         
         
By:   /s/ G. L. Bauley      

 

 

8
 

 

Exhibit 3.7

 

SOUTH JERSEY INDUSTRIES, INC.

 

Certificate of Amendment of the
Certificate of Incorporation

 

To: The Secretary of State of
the State of New Jersey

 

Pursuant to the provisions of Section 14A:9–2 (4) and Section 14A:9–4 (3) of Title 14A, Corporations, General, of the New Jersey Statutes, the undersigned corporation executes the following Certificate of Amendment of its Certificate of Incorporation.

 

1. The name of the corporation is South Jersey Industries, Inc. (“Company”).

 

2. The amendment to the Certificate of Incorporation, which is set forth in full in the following resolution, was duly adopted by the shareholders of the Company on April 21, 2005.

 

RESOLVED, That upon receiving approval of shareholders of the Company, Article Third of the Company’s Certificate of Incorporation would be amended and restated in its entirety as follows:

 

“THIRD: The aggregate number of shares which the corporation shall have authority to issue is 62,500,000 shares, divided into two classes consisting of 60,000,000 shares of common stock (“Common Stock”), $1.25 par value per share, and 2,500,000 shares of preference stock (“Preference Stock”), without par value.”

 

3. At the time of the action of the shareholders:

 

(a) The total outstanding stock of the Company consisted of 13,887,257 shares of Common Stock.

 

(b) The number of such shares entitled to vote was 13,887,257.

 

4. In the action taken by the shareholders:

 

(c) The number of such shares voted in favor of the amendment was 11,964,571.

 

(d) The number of such shares voted against the amendment was 319,156.

 

5. Upon the record date of June 10, 2005, each of the then issued shares of Common Stock of the Company, par value $1.25 per share (including any shares thereof held in the treasury of the Company), shall be changed and reclassified into two shares of Common Stock of the Company, par value $1.25 per share. There shall then be issued to and in the name of each holder of such a certificate an additional certificate for the same number of shares of Common Stock of the Company, par value $1.25 per share, so that each such holder will hold certificates representing two shares of Common Stock of the Company, par value $1.25 per share, immediately after such record date for each one share of Common Stock of the Company, par value $1.25 per share, represented by certificates held by him immediately prior to such record date.

 

 
 

 

6. The effective date of the foregoing amendment to the Certificate of Incorporation of the Company shall be the close of business on May 5, 2005.

 

Dated: May 5, 2005

 

 

  SOUTH JERSEY INDUSTRIES, INC.
   
     
  By:   /s/ Richard H. Walker, Jr.
    Richard H. Walker, Jr.
    VP, Corp. Counsel & Corp. Secretary

 

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Exhibit 3.8

 

SOUTH JERSEY INDUSTRIES, INC.

 

Certificate of Amendment of the
Certificate of Incorporation

 

Pursuant to the provisions of Section 14A:9–2 (4) and Section 14A:9–4 (3) of Title 14A, Corporations, General, of the New Jersey Statutes, the undersigned corporation executes the following Certificate of Amendment of its Certificate of Incorporation.

 

1. The name of the corporation is South Jersey Industries, Inc.

 

2. The amendment to the Certificate of Incorporation, set forth in full in the following resolution, was duly approved by the directors of the corporation on January 23, 2009 and was duly adopted by the shareholders of the corporation on April 23, 2009:

 

RESOLVED, that Article SEVENTH of the Certificate of Incorporation of the company be amended to read in its entirety as follows:

 

SEVENTH: the directors of the corporation shall be elected annually at the Annual Meeting of Shareholders.

 

FURTHER RESOLVED, that Article EIGHTH of the Certificate of Incorporation of the company be amended as follows:

 

1. By deleting the phrase “considered for such purpose as one class” in paragraph (1) thereof; and

 

2. By deleting the phrase “considered for this purpose as one class” in paragraph (3) (e) thereof.

 

3. At the time of the adoption of the amendment:

 

(a) The total outstanding stock of the Company consisted of 29,796,232 shares of common stock.

 

(b) The number of shares of common stock entitled to vote was 29,738,256.

 

4. In the action take by the shareholders.

 

(a) The number of shares voted in favor of the amendment was 26,161,714.

 

 
 

 

(b) The number of shares voted against the amendment was 381,088.

  

  SOUTH JERSEY INDUSTRIES, INC.
   
     
  By:   /s/ Edward J. Graham
    Edward J. Graham
    President

 

  

Dated: April 28, 2009

 

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Exhibit 3.9

 

CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
SOUTH JERSEY INDUSTRIES, INC.

 

Pursuant to the provisions of Section 14A:9-4 of the New Jersey Business Corporation Act, the undersigned corporation (the “Corporation”) executes the following Certificate of Amendment to its Certificate of Incorporation:

 

FIRST: That the name of the corporation is SOUTH JERSEY INDUSTRIES, INC.

 

SECOND: The amendment, as adopted (the “Amendment”), adds Article Eleventh to the Certificate of Incorporation of the Corporation, which reads in full as follows:

 

“Eleventh: The provisions of Section 14A:3-6.1 to 14A:3-6.9 of the New Jersey Business Corporation Act are hereby made applicable to the Corporation.”

 

THIRD: The Amendment was approved, pursuant to the provisions of N.J.S.A. 14A:9-2(4)(c), by the Corporation’s shareholders at its annual meeting of shareholders held on April 24, 2014.

 

FOURTH: There were 29,887,544 shares of the common stock, $1.25 par value per share, of the Corporation present and entitled to vote on the proposal to approve the Amendment, of which 16,139,967 shares were voted for approval of the proposal, 13,545,048 shares were voted against such proposal and 202,529 shares abstained. No other shares of any class or series were entitled to vote on the Amendment as a class.

 

IN WITNESS WHEREOF, South Jersey Industries, Inc. has caused this Certificate of Amendment to be signed by Edward J. Graham, its Chairman and Chief Executive Officer, this __ day of June 2014.

  

  SOUTH JERSEY INDUSTRIES, INC.
   
     
  By:   /s/ Edward J. Graham
    Edward J. Graham
    Chairman and Chief Executive Officer

 

 

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Exhibit 3.10

 

CERTIFICATE OF AMENDMENT
TO THE CERTIFICATE OF INCORPORATION
INCREASING THE NUMBER OF AUTHORIZED SHARES

 

OF

  


SOUTH JERSEY INDUSTRIES, INC.

 

Pursuant to Section 14A:7-15.1(3) of the
New Jersey Business Corporation Act

 

To: The Department of the Treasury
State of New Jersey

 

Pursuant to the provisions of Section 14A:7-15.1(3) of the New Jersey Business Corporation Act, the undersigned corporation executes the following Certificate of Amendment to its Certificate of Incorporation:

 

1. The name of the corporation is SOUTH JERSEY INDUSTRIES, INC. (the “Corporation”).

 

2. The Board of Directors of the Corporation, on February 26, 2015, duly approved a resolution authorizing a share dividend of one additional share of the Corporation’s Common Stock, par value $1.25 per share (the “Common Stock”), on each issued and outstanding share of Common Stock (the “Share Dividend”).

 

3. The amendment to the Corporation’s Certificate of Incorporation in connection with the Share Dividend will not adversely affect the rights or preferences of the holders of outstanding shares of any class or series and will not result in the percentage of authorized shares that remains unissued after the Share Dividend exceeding the percentage of authorized shares that was unissued before the Share Dividend.

 

4. Pursuant to Section 14A:7-15.1(3) of the New Jersey Business Corporation Act, the amendment to the Corporation’s Certificate of Incorporation is not subject to shareholder approval; therefore, no shares voted for or against it.

 

5. Article Third of the Corporation’s Certificate of Incorporation is hereby amended and restated to read in its entirety as follows:

 

 
 

 

“THIRD: The aggregate number of shares which the corporation shall have authority to issue is 122,500,000 shares, divided into two classes consisting of 120,000,000 shares of common stock (“Common Stock”), $1.25 par value per share, and 2,500,000 shares of preference stock (“Preference Stock”), without par value.”

 

Dated: February 27, 2015


  SOUTH JERSEY INDUSTRIES, INC.
   
     
  By:   /s/ Edward J. Graham
    Edward J. Graham
    Chairman & CEO

 

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