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Item 9A. Controls and Procedures

2023-11-29 compared with 2022-11-22 · 49 added, 37 removed, 126 unchanged (41% of the section changed)

6 unchanged sentences

Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, our management conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in “Internal Control—Integrated Framework (2013)” issued by the Committee of Sponsoring Organizations of the Treadway Commission.

Under guidelines established by the SEC, companies are allowed to exclude acquisitions from their first assessment of internal control over financial reporting following the date of the acquisition.

Management excluded the fiscal year 2022 acquisitions of King Asphalt, Inc., which was completed on October 1, 2021, and Southern Asphalt, Inc., which was completed on August 1, 2022, from the assessment of the effectiveness of internal control over financial reporting.

Under guidelines established by the SEC, companies are allowed to exclude certain acquisitions from their first assessment of internal control over financial reporting following the date of the acquisition.

Management excluded Ferebee Corporation, which we acquired on December 1, 2022, from the assessment of the effectiveness of internal control over financial reporting.

Total assets of 5% at September 30, 2023 (excluding goodwill which was included within the scope of our assessment) and revenue and net income of 3% and 2%, respectively, for the fiscal year ended September 30, 2023, were excluded from management’s assessment at September 30, 2023.

King Asphalt, Inc.

and Southern Asphalt, Inc.

will be included in management's assessment of the effectiveness of internal controls over financial reporting as of September 30, 2023.

Ferebee Corporation will be included in management’s assessment of the effectiveness of internal controls over financial reporting as of September 30, 2024.

Based on the results of our evaluation, our management concluded that our internal control over financial reporting was effective as of September 30, 2023.

2 unchanged sentences

Changes in Internal Control Over Financial Reporting

The Company is in the process of integrating King Asphalt, Inc.

and Southern Asphalt, Inc.

into its operations and internal control processes, and will include these acquisitions in its assessment of internal controls in fiscal year 2023.

Other than related to the King Asphalt Inc.

and Southern Asphalt, Inc.

acquisitions, there were no changes in our internal control over financial reporting during the twelve months ended September 30, 2022, that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

The Company is in the process of integrating Ferebee Corporation into its operations and internal control processes, and will include this acquisition in its assessment of internal controls in fiscal year 2024.

Other than related to the Ferebee Corporation acquisition, there were no changes in our internal control over financial reporting during the three months ended September 30, 2023, that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

Other Information.

During the quarter ended September 30, 2023, no director or officer (as defined in Rule 16a-1(f) of the Exchange Act) of the Company adopted , modified, or terminated any “Rule 10b5-1 trading arrangement” or “non-Rule 10b5-1 trading arrangement” (in each case, as defined in Item 408(a) of Regulation S-K).

Disclosure Regarding Foreign Jurisdictions that Prevent Inspections.

4 unchanged sentences

Executive Compensation.

The information required by this Item is incorporated by reference to the 2023 Proxy Statement.

The information required by this Item is incorporated by reference to the 2024 Proxy Statement, except for the information required by Item 402(v) of Regulation S-K, which is specifically not incorporated herein by reference.

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

27 unchanged sentences

Number Description

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)

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.

3.1 Amended and Restated Certificate of Incorporation of Construction Partners, Inc., as amended through February 23, 2023 (incorporated by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q (File No.

001-38479) filed on August 8, 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)

2 unchanged sentences

333-224174) filed on April 23, 2018)

Registration Rights Agreement, dated June 8, 2007, by and among Construction Partners, Inc.

(f/k/a SunTx CPI Growth Company, Inc.) and certain security holders party thereto (incorporated by reference to Exhibit 4.2 to the Registration Statement on Form S-1 (File No.

333-224174) filed on April 6, 2018)

4.2* Description of Construction Partners, Inc.’s Class A common stock

7 unchanged sentences

001-38479) filed on June 30, 2022)

10.2A 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)

10.2B Second Amendment to Third Amended and Restated Credit Agreement, dated as of May 8, 2023, by and among Construction Partners, Inc.

and each of its wholly owned subsidiaries, as borrowers, PNC Bank, National Association, as administrative agent and issuing lender, and certain other lenders party thereto (incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q (File No.

001-38479) filed on August 8, 2023)

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

1 unchanged sentence

001-38479) filed on April 3, 2020)

Amendment to Employment Agreement, effective as of October 1, 2020, by and between Construction Partners, Inc.

10.3A† Amendment to Employment Agreement, effective as of October 1, 2020, by and between Construction Partners, Inc.

Smith, III (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No.

001-38479) filed on October 2, 2020)

Second Amendment to Employment Agreement, effective as of May 5, 2021, by and between Construction Partners, Inc.

10.3B† Second Amendment to Employment Agreement, effective as of May 5, 2021, by and between Construction Partners, Inc.

Smith, III (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (File No.

4 unchanged sentences

333-224174) filed on April 23, 2018)

First Amendment to the Construction Partners, Inc.

10.4A† First Amendment to the Construction Partners, Inc.

2018 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q (File No.

001-38479) filed on August 9, 2019)

Form of Restricted Stock Award under the Construction Partners, Inc.

10.4B† Form of Restricted Stock Award under the Construction Partners, Inc.

2018 Equity Incentive Plan (incorporated by reference to Exhibit 10.9 to the Registration Statement on Form S-1 (File No.

333-224174) filed on April 6, 2018)

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

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

10.4C† Form of Performance Stock Unit Award Agreement under the Construction Partners, Inc.

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

001-38479) filed on January 5, 2022)

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

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

10.4D† 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)

10.4E†* Form of Cash-Settled Restricted Stock Unit Award Agreement under the Construction Partners, Inc.

2018 Equity Incentive Plan

10.5† Construction Partners, Inc.

Employee Stock Purchase Plan (incorporated by reference to Appendix A to the Definitive Proxy Statement on Schedule 14A (File No.

001-38479) filed on January 12, 2022)

10.6 Management Services Agreement, dated October 1, 2006, by and between Construction Partners Holdings, Inc.

2 unchanged sentences

333-224174) filed on April 6, 2018)

Amendment to Management Services Agreement, dated October 1, 2013, by and between Construction Partners Holdings, Inc.

10.6A Amendment to Management Services Agreement, dated October 1, 2013, by and between Construction Partners Holdings, Inc.

(f/k/a Construction Partners, Inc.) and SunTx Capital Management Corp.

1 unchanged sentence

333-224174) filed on April 6, 2018)

10.6B Second Amendment to Management Services Agreement, effective as of October 1, 2015, by and between Construction Partners, Inc.

and SunTx Capital Management Corp.

(incorporated by reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q (File No.

001-38479) filed on May 9, 2023)

10.6C Third Amendment to Management Services Agreement, effective as of October 1, 2023, by and between Construction Partners, Inc.

and SunTx Capital Management Corp.

(incorporated by reference to Exhibit 10.3 to the Quarterly Report on Form 10-Q (File No.

001-38479) filed on May 9, 2023)

14.1 Code of Business Conduct and Ethics (incorporated by reference to Exhibit 14.1 to the Annual Report on Form 10-K (File No.

2 unchanged sentences

23.1* Consent of RSM US LLP

Number Description

31.1* 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

3 unchanged sentences

95.1* Mine Safety Disclosures

97.1* Construction Partners, Inc.

Incentive Compensation Recoupment Policy

101.INS* Inline XBRL Instance Document

7 unchanged sentences

* Filed herewith.

Number Description

** Furnished herewith.

# Schedules and exhibits omitted pursuant to Item 601(a)(5) of Regulation S-K.

The Company agrees to furnish to the Securities and Exchange Commission a copy of any omitted schedule or exhibit upon request.

Certain confidential information has been excluded pursuant to Item 601 (b)(10)(iv) of Regulation S-K.

Construction Partners, Inc.

agrees to furnish to the Securities and Exchange Commission a copy of any omitted schedule or exhibit upon request.

Certain confidential information has been excluded pursuant to 601(b)(10(iv) of Regulation S-K.

Such excluded information is not material and is the type that the registrant treats as private or confidential.

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 22nd day of November, 2022.

CONSTRUCTION PARTNERS, INC.

4 unchanged sentences

Smith, III (Principal Executive Officer)

Alan Palmer Executive Vice President and Chief Financial Officer November 22, 2022

Alan Palmer (Principal Financial Officer)

/s/ Gregory A.

Hoffman Senior Vice President and Chief Financial Officer November 29, 2023

Hoffman (Principal Financial Officer)

Andrews Chief Accounting Officer November 29, 2023

13 unchanged sentences

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-K

Item 9A. Controls and Procedures