| | Item 3 is hereby amended and supplemented as follows:
"Ned N. Fleming, IV
On each of November 15, 2024 and December 27, 2024, Mr. Fleming surrendered 5,114 and 747 shares of Class A Common Stock, respectively, to the Issuer to satisfy tax withholding obligations upon vesting of awards previously granted under the Plan.
On December 17, 2024, Mr. Fleming acquired (i) 2,374 shares of Class A Common Stock as a result of the vesting of PSUs granted pursuant to the 2021 LTIP-B Award Agreements and (ii) 689 shares of Class A Common Stock granted pursuant to the Plan, which vested immediately.
On March 4, 2025, Mr. Fleming received a grant of (i) 1,000 restricted shares of Class A Common Stock and (ii) 1,000 cash-settled restricted stock units ("RSUs").
Additionally, on April 14, 2025, in a series of privately negotiated transactions, Tar Frog acquired 9,333 shares of Class A Common Stock and 5,990 shares of Class B Common Stock for aggregate consideration of approximately $1.1 million.
Barrett N. Bruce
On each of December 7, 2022, June 22, 2023, September 29, 2023 and December 6, 2024, entities affiliated with SunTx distributed to Mr. Bruce 34,560, 691, 450 and 290 shares of Class B Common Stock, respectively, for no consideration. Additionally, on December 6, 2024, entities affiliated with SunTx distributed to a 401(k) account for the benefit of Mr. Bruce 537 shares of Class B Common Stock for no consideration.
As further discussed in Item 4 below, pursuant to grants under the 2024 Plan, Mr. Bruce has received 3,000 Class B Market-Based Shares, all of which have vested, as compensation for services provided to the Issuer.
Charles E. Owens
Grace acquired (i) 2,424,139 shares of Class B Common Stock and (ii) a stock option to purchase 238,773 shares of Class B Common Stock, at an exercise price of $5.70 per share, prior to the Issuer's initial public offering in May 2018. On June 29, 2018, Grace exercised such stock option and purchased 238,773 shares of Class B Common Stock, 162,864 of which were subsequently surrendered to the Issuer to pay the exercise price of the stock option and to satisfy tax withholding obligations upon the exercise of the stock option.
On May 8, 2020, Grace distributed, for no consideration, 1,250,048 shares of Class B Common Stock to certain of its limited partners, in amounts representing each such partner's pro rata interest in the shares of Class B Common Stock held by Grace at the time of the distribution. In connection with such distribution, certain trusts for which Mr. Owens serves as sole trustee (the "Trusts") received 625,102 shares of Class B Common Stock.
On July 30, 2020, the Trusts converted 445,520 shares of Class B Common Stock to 445,520 shares of Class A Common Stock.
On each of August 11, 2020 and August 12, 2020, the Trusts sold 56,955 and 50,552 shares of Class A Common Stock, respectively, in open market transactions for aggregate consideration of approximately $2.2 million. Such sales were made pursuant to a Rule 10b5-1 trading plan adopted by Mr. Owens on June 12, 2020 (the "Owens 10b5-1 Plan"). Also on August 11, 2020, the Trusts sold 179,582 shares of Class B Common Stock in a privately negotiated transaction for aggregate consideration of approximately $3.1 million.
Furthermore, on each of August 14, 2020, August 17, 2020, August 18, 2020, August 19, 2020, August 20, 2020 and August 21, 2020, the Trusts sold 84,454, 52,259, 58,683, 33,538, 65,594 and 43,485 shares of Class A Common Stock, respectively, in open market transactions for aggregate consideration of approximately $6.6 million. Such sales were made pursuant to the Owens 10b5-1 Plan.
In November 2021 and June 2023, entities affiliated with SunTx distributed to Mr. Owens an aggregate of 6,775 shares of Class B Common Stock for no consideration.
On May 22, 2024, Grace exchanged 250,000 shares of Class B Common Stock for 250,000 newly issued shares of Class A Common Stock for no consideration.
On each of December 4, 2024, December 5, 2024, December 6, 2024, December 9, 2024, December 10, 2024 and December 11, 2024, Grace sold 46,596, 23,418, 49,695, 9,717, 1,761 and 16,203 shares of Class A Common Stock, respectively, in open market transactions for aggregate consideration of approximately $14.8 million.
Additionally, on December 6, 2024, entities affiliated with SunTx distributed to Mr. Owens 294 shares of Class B Common Stock for no consideration.
Fred J. Smith, III
Mr. Smith acquired 26,460 shares of Class B Common Stock prior to the Issuer's initial public offering in May 2018.
On each of June 19, 2019, September 5, 2019, August 11, 2020, June 30, 2021 and January 14, 2022, Mr. Smith acquired 140,389, 40,000, 134,582, 10,500 and 50,000 shares of Class B Common Stock, respectively, in privately negotiated transactions for aggregate consideration of approximately $5.1 million.
Prior to the Issuer's initial public offering, Mr. Smith acquired a stock option to purchase 74,592 shares of Class B Common Stock at an exercise price of $0.0357 per share. On August 30, 2019, Mr. Smith and the Issuer entered into an amendment to the stock option award agreement, and Mr. Smith exercised the stock option and purchased 74,592 shares of Class B Common Stock.
As further discussed in Item 4 below, pursuant to grants under the Plan, Mr. Smith has received 164,814 restricted shares of Class A Common Stock, 97,888 of which have vested, as compensation for services provided to the Issuer. Additionally, pursuant to grants under the 2024 Plan, Mr. Smith has received 10,000 restricted shares of Class B Common Stock, all of which have vested, as compensation for services provided to the Issuer.
On each of October 20, 2021, November 4, 2022, October 2, 2023, December 14, 2023, December 19, 2023, October 1, 2024, November 15, 2024 and December 27, 2024, Mr. Smith surrendered 501, 1,103, 1,730, 3,492, 776, 23,159, 9,944 and 7,493 shares of Class A Common Stock, respectively, to the Issuer to satisfy tax withholding obligations upon vesting of awards previously granted under the Plan.
On May 22, 2024, Mr. Smith exchanged 28,343 shares of Class A Common Stock for 28,343 newly issued shares of Class B Common Stock for no consideration.
On April 14, 2025, in a series of privately negotiated transactions, (i) Tar Frog acquired 9,333 shares of Class A Common Stock and 5,990 shares of Class B Common Stock for aggregate consideration of approximately $1.1 million and (ii) Mr. Smith exchanged 43,104 shares of Class A Common Stock for an equal number of shares of Class B Common Stock for no consideration.
The information set forth in Item 4 of this Amendment is incorporated by reference in this Item 3." |
| | Item 4 is hereby amended and supplemented as follows:
"Amended and Restated Voting Agreement
On August 6, 2025, the Reporting Persons entered into an amended and restated voting agreement (the "A&R Voting Agreement") by and among the Reporting Persons, SunTx Capital Management Corp., a Texas corporation, and SunTx Capital II Management Corp., a Texas corporation, which replaced the previous Voting Agreement. Pursuant to the A&R Voting Agreement, the Reporting Persons agreed to, at any annual or special meeting of the Issuer with respect to the election of the Board of Directors of the Issuer, vote their shares of Class A Common Stock and Class B Common Stock in favor of SunTx's recommended candidates for service on the Board of Directors of the Issuer.
The foregoing description of the A&R Voting Agreement does not purport to be complete and is qualified in its entirety by the full text of the A&R Voting Agreement, a copy of which is attached hereto as Exhibit 99.9 and is incorporated by reference herein.
Restricted Stock Award Agreements
Barrett N. Bruce
On October 20, 2024, Mr. Bruce received a grant of 3,000 Class B Market-Based Shares pursuant to the 2024 Plan and subject to the terms and conditions of the restricted stock award agreement by and between the Issuer and Mr. Bruce, a form of which is attached hereto as Exhibit 99.8 and is incorporated by reference herein. The Market-Based Shares vested upon the later of (i) the closing of the Acquisition, and (ii) the first date, if any, that the closing price of the Class A Common Stock on Nasdaq equals or exceeds $88.00 per share, provided that (x) such date occured on or before the fourth (4th) anniversary of the grant date and (y) Mr. Bruce was employed by, or providing services to, the Issuer on the vesting date. Such award vested in full on November 6, 2024.
Ned N. Fleming, IV
On December 17, 2024, Mr. Fleming acquired 689 restricted shares of Class A Common Stock granted pursuant to the Plan and subject to the terms and conditions of the restricted stock award agreement by and between the Issuer and Mr. Fleming, a form of which is attached hereto as Exhibit 99.7 and is incorporated by reference herein, which vested immediately.
On March 4, 2025, Mr. Fleming received a grant of 1,000 restricted shares of Class A Common Stock pursuant to the Plan and subject to the terms and conditions of the restricted stock award agreement by and between the Issuer and Mr. Fleming, a form of which is attached hereto as Exhibit 99.7 and is incorporated by reference herein,which vest in one-fourth installments on September 30, 2025, 2026, 2027 and 2028. Also on March 4, 2025, Mr. Fleming received a grant of 1,000 cash-settled RSUs pursuant to the Plan and subject to the terms and conditions of the cash-settled restricted stock unit award agreement by and between the Issuer and Mr. Fleming, a form of which is attached hereto as Exhibit 99.2 and is incorporated by reference herein, which vest in one-fourth installments on September 30, 2025, 2026 2027 and 2028.
Fred J. Smith, III
On January 4, 2021, Mr. Smith received a grant of 10,000 restricted shares of Class A Common Stock pursuant to the Plan and subject to the terms and conditions of the restricted stock award agreement by and between the Issuer and Mr. Smith, a form of which is attached hereto as Exhibit 99.7 and is incorporated by reference herein, of which 2,500 shares vested immediately and 2,500 shares vested on each of January 4, 2022, 2023 and 2024.
On April 15, 2021, Mr. Smith received a grant of (i) 7,333 restricted shares of Class A Common Stock, which vested in one-fourth installments on September 30, 2021, 2022, 2023 and 2024, and (ii) 100,000 restricted shares of Class A Common Stock, which vest in one-half installments on September 30, 2024 and 2025. The grants were made pursuant to the Plan and subject to the terms and conditions of the restricted stock award agreement by and between the Issuer and Mr. Smith, a form of which is attached hereto as Exhibit 99.7 and is incorporated by reference herein.
On December 29, 2021, Mr. Smith received a grant of 7,666 restricted shares of Class A Common Stock pursuant to the Plan and subject to the terms and conditions of the restricted stock award agreement by and between the Issuer and Mr. Smith, a form of which is attached hereto as Exhibit 99.7 and is incorporated by reference herein, which vest in one-fourth installments on September 30, 2022, 2023, 2024 and 2025.
On November 3, 2022, Mr. Smith received a grant of 8,482 restricted shares of Class A Common Stock pursuant to the Plan and subject to the terms and conditions of the restricted stock award agreement by and between the Issuer and Mr. Smith, a form of which is attached hereto as Exhibit 99.7 and is incorporated by reference herein, which vest in one-fourth installments on September 30, 2023, 2024, 2025 and 2026.
On December 13, 2023, Mr. Smith received a grant of (i) 2,635 restricted shares of Class A Common Stock, which vested immediately, and (ii) 7,352 restricted shares of Class A Common Stock, which vest in one-fourth installments on September 30, 2024, 2025, 2026 and 2027. The grants were made pursuant to the Plan and subject to the terms and conditions of the restricted stock award agreement by and between the Issuer and Mr. Smith, a form of which is attached hereto as Exhibit 99.7 and is incorporated by reference herein.
On October 20, 2024, Mr. Smith received a grant of 10,000 Class A Market-Based Shares and 11,000 Class B Market-Based Shares. The Market-Based Shares vested upon the later of (i) the closing of the Acquisition, and (ii) the first date, if any, that the closing price of the Class A Common Stock on Nasdaq equals or exceeds $88.00 per share, provided that (x) such date occurred on or before the fourth (4th) anniversary of the grant date and (y) Mr. Smith was employed by, or providing services to, the Issuer on the vesting date. Such award vested in full on November 6, 2024. The grants of the Class A Market-Based Shares were made pursuant to the Plan and subject to the terms and conditions of the restricted stock award agreement by and between the Issuer and Mr. Smith, a form of which is attached hereto as Exhibit 99.7 and is incorporated by reference herein. The grants of the Class B Market-Based Shares were made pursuant to the 2024 Plan and subject to the terms and conditions of the restricted stock award agreement by and between the Issuer and Mr. Smith, a form of which is attached hereto as Exhibit 99.8 and is incorporated by reference herein.
On December 17, 2024, Mr. Smith received a grant of 3,594 restricted shares of Class A Common Stock pursuant to the Plan and subject to the terms and conditions of the restricted stock award agreement by and between the Issuer and Mr. Smith, a form of which is attached hereto as Exhibit 99.7 and is incorporated by reference herein, which vested immediately.
On March 4, 2025, Mr. Smith received a grant of 5,252 restricted shares of Class A Common Stock pursuant to the Plan and subject to the terms and conditions of the restricted stock award agreement by and between the Issuer and Mr. Smith, a form of which is attached hereto as Exhibit 99.7 and is incorporated by reference herein, which vest in one-fourth installments on September 30, 2025, 2026, 2027 and 2028.
Performance Stock Unit Award Agreements
Ned N. Fleming, IV
On December 13, 2023, Mr. Fleming received a grant of 3,656 target PSUs, with each unit having a notional value equivalent to one share of Class A Common Stock, pursuant to the Plan and that certain Performance Stock Unit Award and Grant Notice by and between the Issuer and Mr. Fleming (the "Fleming 2023 LTIP-B Award Agreement"). The Fleming 2023 LTIP-B Award Agreement provides for a target number of PSUs that Mr. Fleming may earn, with the preliminary number of vested PSUs to be determined based on the Issuer's actual performance compared to its targets over a three-year performance period beginning October 1, 2023 and ending September 30, 2026.
On March 4, 2025, Mr. Fleming received a grant of 4,000 target PSUs, with each unit having a notional value equivalent to one share of Class A Common Stock, pursuant to the Plan and that certain Performance Stock Unit Award and Grant Notice by and between the Issuer and Mr. Fleming (the "Fleming 2025 LTIP-B Award Agreement"). The Fleming 2025 LTIP-B Award Agreement provides for a target number of PSUs that Mr. Fleming may earn, with the preliminary number of vested PSUs to be determined based on the Issuer's actual performance compared to its targets over a three-year performance period beginning October 1, 2024 and ending on September 30, 2027.
Pursuant to each of the Fleming 2023 LTIP-B Award Agreement and the Fleming 2025 LTIP-B Award Agreement, fifty percent (50%) of the target PSUs (the "Fleming Revenue Target PSUs") will be eligible to vest based on the Issuer's achievement of compound aggregate revenue growth rate as it compares to the revenue growth rate target, as set forth in the applicable award agreement. The number of vested Fleming Revenue Target PSUs will be interpolated for performance between each performance level (based on whole percentages), and no Fleming Revenue Target PSUs will vest if the actual performance level is less than 89% of the revenue growth target over the performance period. The remaining fifty percent (50%) of the target PSUs (the "Fleming Adjusted EBITDA Margin Target PSUs") will be eligible to vest based on the Issuer's achievement of average Adjusted EBITDA margin as it compares to the average Adjusted EBITDA margin target, as set forth in the applicable award agreement. The number of vested Fleming Adjusted EBITDA Margin Target PSUs will be interpolated for performance between each performance level (based on whole percentages), and no Fleming Adjusted EBITDA Margin Target PSUs will vest if the actual performance level is less than 95.2% of the average Adjusted EBITDA margin target over the performance period. Following a determination of the preliminary vested PSUs, the final number of PSUs that are eligible to vest will be either increased or decreased by up to 15% based on a comparison of the Issuer's TSR over the performance period compared to that of the Russell 2000 over the same period (provided that the Issuer's TSR must be positive in order for any upward adjustment to be made).
No PSUs granted pursuant to the Fleming 2023 LTIP-B Award Agreement or the Fleming 2025 LTIP-B Award Agreement have vested as of the date of this Schedule 13D.
The foregoing description of the Fleming 2023 LTIP-B Award Agreement and the Fleming 2025 LTIP-B Award Agreement does not purport to be complete and is qualified in its entirety by the full text of the form of performance stock unit award agreement, a copy of which is attached hereto as Exhibit 99.5 and is incorporated by reference herein.
Fred J. Smith, III
On December 29, 2021, Mr. Smith received a grant of 13,750 PSUs pursuant to the Plan and subject to the terms and conditions of that certain Performance Stock Unit Award and Grant Notice by and between the Issuer and Mr. Smith, a form of which is attached hereto as Exhibit 99.4 and is incorporated by reference herein. The performance criteria for such PSUs were partially met, which resulted in the issuance of 11,859 shares of Class A Common Stock on December 13, 2023, of which 3,492 shares were subsequently surrendered to the Issuer to satisfy tax withholding obligations upon vesting of the PSUs.
On December 29, 2021, Mr. Smith received a grant of 14,375 PSUs pursuant to the Plan and subject to the terms and conditions of that certain Performance Stock Unit Award and Grant Notice by and between the Issuer and Mr. Smith, a form of which is attached hereto as Exhibit 99.4 and is incorporated by reference herein. The performance criteria for such PSUs were partially met, which resulted in the issuance of 12,398 shares of Class A Common Stock on December 17, 2024, of which 7,493 shares were subsequently surrendered to the Issuer to satisfy tax withholding obligations upon vesting of the PSUs.
On November 3, 2022, Mr. Smith received a grant of 15,905 target PSUs, with each unit having a notional value equivalent to one share of Class A Common Stock, pursuant to the Plan and that certain Performance Stock Unit Award and Grant Notice by and between the Issuer and Mr. Smith ("Smith 2022 LTIP-B Award Agreement"). The Smith 2022 LTIP-B Award Agreement provides for a target number of PSUs that are eligible to vest, with the preliminary number of vested PSUs to be determined based on the Issuer's actual performance compared to its targets over the three-year performance period beginning October 1, 2022 and ending September 30, 2025.
On December 13, 2023, Mr. Smith received a grant of 14,700 target PSUs, with each unit having a notional value equivalent to one share of Class A Common Stock, pursuant to the Plan and that certain Performance Stock Unit Award and Grant Notice by and between the Issuer and Mr. Smith (the "Smith 2023 LTIP-B Award Agreement"). The Smith 2023 LTIP-B Award Agreement provides for a target number of PSUs that Mr. Smith may earn, with the preliminary number of vested PSUs to be determined based on the Issuer's actual performance compared to its targets over a three-year performance period beginning October 1, 2023 and ending September 30, 2026.
On March 4, 2025, Mr. Smith received a grant of 14,000 target PSUs, with each unit having a notional value equivalent to one share of Class A Common Stock, pursuant to the Plan and that certain Performance Stock Unit Award and Grant Notice by and between the Issuer and Mr. Smith (the "Smith 2025 LTIP-B Award Agreement"). The Smith 2025 LTIP-B Award Agreement provides for a target number of PSUs that Mr. Smith may earn, with the preliminary number of vested PSUs to be determined based on the Issuer's actual performance compared to its targets over a three-year performance period beginning October 1, 2024 and ending on September 30, 2027.
Pursuant to each of the Smith 2022 LTIP-B Award Agreement, the Smith 2023 LTIP-B Award Agreement and the Smith 2025 LTIP-B Award Agreement, fifty percent (50%) of the target PSUs (the "Smith Revenue Target PSUs") will be eligible to vest based on the Issuer's achievement of compound aggregate revenue growth rate as it compares to the revenue growth rate target, as set forth in the applicable award agreement. The number of vested Smith Revenue Target PSUs will be interpolated for performance between each performance level (based on whole percentages), and no Smith Revenue Target PSUs will vest if the actual performance level is less than 89% of the revenue growth target over the performance period. The remaining fifty percent (50%) of the target PSUs (the "Smith Adjusted EBITDA Margin Target PSUs") will be eligible to vest based on the Issuer's achievement of average Adjusted EBITDA margin as it compares to the average Adjusted EBITDA margin target, as set forth in the applicable award agreement. The number of vested Smith Adjusted EBITDA Margin Target PSUs will be interpolated for performance between each performance level (based on whole percentages), and no Smith Adjusted EBITDA Margin Target PSUs will vest if the actual performance level is less than 95.2% of the average Adjusted EBITDA margin target over the performance period. Following a determination of the preliminary vested PSUs, the final number of PSUs that are eligible to vest will be either increased or decreased by up to 15% based on a comparison of the Issuer's TSR over the performance period compared to that of the Russell 2000 over the same period (provided that the Issuer's TSR must be positive in order for any upward adjustment to be made).
No PSUs granted pursuant to the Smith 2022 LTIP-B Award Agreement, the Smith 2023 LTIP-B Award Agreement or the Smith 2025 LTIP-B Award Agreement have vested as of the date of this Schedule 13D.
The foregoing description of the Smith 2022 LTIP-B Award Agreement, the Smith 2023 LTIP-B Award Agreement and the Smith 2025 LTIP-B Award Agreement does not purport to be complete and is qualified in its entirety by the full text of the form of performance stock unit award agreement, a copy of which is attached hereto as Exhibit 99.5 and is incorporated by reference herein." |
| | Item 7 is hereby amended and restated in its entirety as follows:
"The following exhibits are filed as exhibits hereto:
99.1 Joint Filing Agreement (filed herewith).
99.2 Form of Cash-Settled Restricted Stock Unit Award Agreement under the Construction Partners, Inc. 2018 Equity Incentive Plan (incorporated by reference to Exhibit 10.4E to the Annual Report on Form 10-K (File No. 001-38479) filed on November 29, 2023).
99.3 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).
99.4 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).
99.5 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).
99.6 Exchange Agreement, dated May 22, 2024, by and among Construction Partners, Inc., Ned N. Fleming, III, Fred J. (Jule) Smith, III, The Fleming Family Management Trust, The Michael H. McKay Trust dated April 1, 2008, Ned N. Fleming, IV, SunTx Capital Partners II, LP, SunTx Capital Partners II Dutch Investors, LP and Grace, Ltd. (incorporated by reference to Exhibit 99.6 to Amendment No. 1 to the Schedule 13D filed by the Reporting Persons on May 24, 2024).
99.7 Form of Restricted Stock Award under the Construction Partners, Inc. 2018 Equity Incentive Plan (incorporated by reference to Exhibit 99.7 to the Schedule 13D filed by the Reporting Persons on October 22, 2024).
99.8 Form of Restricted Stock Award under the Construction Partners, Inc. 2024 Restricted Stock Plan (incorporated by reference to Exhibit 99.8 to the Schedule 13D filed by the Reporting Persons on October 22, 2024).
99.9 Amended and Restated Voting Agreement dated August 6, 2025, by and among Barrett N. Bruce, Ned N. Fleming, IV, Charles E. Owens and Fred J. Smith, III, SunTx Capital Management Corp. and SunTx Capital II Management Corp. (filed herewith)." |
