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Item 5. Other Information

2023-05-09 compared with 2023-02-09 · 55 added, 17 removed, 24 unchanged (75% of the section changed)

Other Information.

3.1 Amended and Restated Certificate of Incorporation of Construction Partners, Inc.

(incorporated by reference to Exhibit 3.1 to Amendment No.

2 to the Registration Statement on Form S-1 (File No.

333-224174) filed on April 27, 2018)

3.2 Amended and Restated By - L aws of Construction Partners, Inc.

(incorporated by reference to Exhibit 3.

1 to the Current Report on Form 8-K (File No.

Amendment to Management Services Agreement

As previously disclosed, on October 1, 2006, the Company and SunTx Capital Management entered into a management services agreement (as the same has been amended from time to time, the “Management Services Agreement”).

Pursuant to the Management Services Agreement, SunTx Capital Management provides certain management services to the Company including with respect to financing, business strategies and business development, and in consideration for the management services, the Company is required to pay SunTx Capital Management a fee equal to $83,333.33 per month (payable in arrears in equal quarterly or semi-annual installments, at the Company’s option), subject to certain adjustments as set forth in the Management Services Agreement.

On May 4, 2023, the Company and SunTx Capital Management entered into Amendment No.

3 to the Management Services Agreement, effective October 1, 2023 (the “Amendment”), which extends the term of the Management Services Agreement from October 1, 2023 to October 1, 2028.

The foregoing description of the Amendment is a summary only and does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Amendment, a copy of which is filed as Exhibit 10.3 to this Quarterly Report on Form 10-Q and is incorporated herein by reference.

Chief Financial Officer Employment Agreement

As previously disclosed, on March 6, 2023, the Company announced that Gregory A.

Hoffman would transition from his then-current position as Senior Vice President of Finance to the role of Chief Financial Officer of the Company following the close of business on March 31, 2023.

In connection with his transition to Chief Financial Officer, on May 4, 2023, Mr.

Hoffman and the Company entered into an employment agreement (the “Employment Agreement”).

The material terms of the Employment Agreement are described below.

The term of the Employment Agreement is two years, commencing on April 1, 2023.

Beginning on the second anniversary of the Effective Date (as defined in the Employment Agreement), and on each anniversary thereafter, the term will renew for an additional one-year period, unless either party provides written notice of its intention not to extend the term at least 60 days prior to the applicable anniversary date, or the Employment Agreement is otherwise terminated in accordance with the termination provisions set forth therein.

The Employment Agreement specifies a minimum annual base salary of $400,000.00 during the term.

The minimum base salary will be reviewed at least annually by the Compensation Committee, and the Compensation Committee may, but is not required to, increase Mr.

Hoffman’s salary during the term.

• Annual Bonus .

Hoffman is eligible to receive a cash bonus in an amount determined either in the discretion of the Compensation Committee or based on the achievement of performance goals under any annual incentive program that may be established and administered by the Compensation Committee from time to time.

• Equity Awards .

Hoffman is eligible to receive awards under the Equity Incentive Plan and any other stock option, stock purchase or equity-based incentive compensation plan or arrangement adopted by the Company from time to time in which executives of the Company are eligible to participate, in an amount determined by the Compensation Committee.

Any such equity awards will be governed by the applicable plan and award agreements.

• Perquisites;

Employee Benefits .

Hoffman is entitled to fringe benefits and perquisites consistent with the practices of the Company and to the extent that the Company provides similar benefits or perquisites to similarly situated executives, which may include the use of a Company-owned automobile to the extent that the Company deems necessary for the performance of services to the Company.

Hoffman is entitled to participate in all other employee benefit plans, practices and programs on a basis that is no less favorable than is provided to similarly situated executives, to the extent consistent with applicable law and the terms of the applicable employee benefit plans.

• Termination Payments .

If the Employment Agreement is terminated under certain circumstances, Mr.

Hoffman may be entitled to receive certain severance payments and benefits.

• Restrictive Covenants .

The Employment Agreement provides for certain restrictive covenants, including covenants limiting or prohibiting competition, use of confidential information, solicitation of customers, recruitment of employees, and disparagement of the Company during the term of the Employment Agreement and, if the Company so elects, for a period of eighteen months following the termination of employment with the Company for any reason.

• Right of First Refusal to Purchase Shares of Class B Common Stock .

During the term of the Employment Agreement and for a period of eighteen months following the termination of employment for any reason, the Company or its assignee will have a right of first refusal to purchase any shares of the Company’s Class B common stock, that Mr.

Hoffman (or, as applicable, Mr.

Hoffman’s estate) elects to transfer, convert or dispose of during such period.

Hoffman’s compensation is subject to any clawback policies required by applicable law, government regulation or stock exchange listing requirement or otherwise adopted by the Company, as such policies may be amended from time to time.

The foregoing description of the Employment Agreement is a summary only and does not purport to be complete and is subject to, and qualified in its entirety by, reference to the form of Employment Agreement, a copy of which is filed as Exhibit 10.1 to this Quarterly Report on Form 10-Q and is incorporated herein by reference.

3.1* Amended and Restated Certificate of Incorporation of Construction Partners, Inc., as amended through February 23, 2023.

3.2 Amended and Restated By-Laws of Construction Partners, Inc.

(incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K (File No.

001-38479) filed on November 9, 2022)

5 unchanged sentences

333-224174) filed on April 6, 2018)

10.1 First Amendment to Third Amended and Restated Credit Agreement, dated as of November 17 , 2022, by and among Construction Partners, Inc.

and each of its wholly owned subsidiaries, as borrowers, PNC Bank, National Association, as administrative agent and lender, PNC Capital Markets LLC, as joint lead arranger and sole bookrunner, Regions Bank and BofA Securities, Inc., each as a joint arranger, and certain other lenders party thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No.

001-38479) filed on November 22, 2022)

10.2 Form of Performance Stock Unit Award Agreement under the Construction Partners, Inc.

2018 Equity Incentive Plan (Revenue Growth Rate and Adjusted EBITDA Margin Vesting Criteria) (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No.

001-38479) filed on November 9, 2022)

10.1 Form of Employment Agreement, dated April 1, 2020, by and between Construction Partners, Inc.

and certain executive officers (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No.

001-38479) filed on April 3, 2020)

10.2* Second Amendment to Management Services Agreement, effective as of October 1, 2015, by and between Construction Partners, Inc.

and SunTx Capital Management Corp.

10.3* Third Amendment to Management Services Agreement, effective as of October 1, 2023, by and between Construction Partners, Inc.

and SunTx Capital Management Corp.

Certification of President and Chief Executive Officer pursuant to Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934, as amended

12 unchanged sentences

** Furnished herewith.

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 thereunto duly authorized.

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on this 9th day of May, 2023.

CONSTRUCTION PARTNERS, INC.

February 9, 2023 By:

President and Chief Executive Officer

February 9, 2023 By:

Executive Vice President and Chief Financial Officer

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

Name and Signature Title Date

Smith, III President and Chief Executive Officer May 9, 2023

Smith, III (Principal Executive Officer and duly authorized officer)

/s/ Gregory A.

Hoffman Senior Vice President and Chief Financial Officer May 9, 2023

Hoffman (Principal Financial Officer and duly authorized officer)

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-Q

Item 5. Other Information