SEC Form SC 13D/A filed by Vertex Energy Inc (Amendment)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934

(Amendment No. 5)

VERTEX ENERGY, INC.

(Name of Issuer)

COMMON STOCK, PAR VALUE $0.001 PER SHARE

(Title of Class of Securities)

92534K107

(CUSIP Number)

Benjamin P. Cowart

1331 Gemini, Suite 250

Houston, Texas 77058

Telephone: 866-660-8156

 (Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

July 12, 2022

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐

The information required in the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act.

⁽¹⁾ Includes 446,957 shares of Common Stock issuable upon exercise of options which are exercisable within 60 days of the date of this filing.

⁽²⁾ Based on 75,608,826 shares of Common Stock outstanding as of September 30, 2022, as confirmed by the Company’s transfer agent.

* Less than 1%.

⁽¹⁾ Based on 75,608,826 shares of Common Stock outstanding as of September 30, 2022, as confirmed by the Company’s transfer agent.

* Less than 1%.

 ⁽¹⁾ Based on 75,608,826 shares of Common Stock outstanding as of September 30, 2022, as confirmed by the Company’s transfer agent. 

 ⁽²⁾ Based on 75,608,826 shares of Common Stock outstanding as of September 30, 2022, as confirmed by the Company’s transfer agent.

* Less than 1%.

⁽¹⁾ Based on 75,608,826 shares of Common Stock outstanding as of September 30, 2022, as confirmed by the Company’s transfer agent.

* Less than 1%.

⁽¹⁾ Based on 75,608,826 shares of Common Stock outstanding as of September 30, 2022, as confirmed by the Company’s transfer agent.

This Amendment No. 5 (the “Amendment”) amends and supplements the Schedule 13D filed with the Securities and Exchange Commission (the “Commission”) on May 15, 2009, by Benjamin P. Cowart, as amended by the Amendment No. 1 to the Schedule 13D, filed with the Commission on September 12, 2012, Amendment No. 2 to the Schedule 13D, filed with the Commission on December 22, 2014, Amendment No. 3 to the Schedule 13D, filed with the Commission on February 4, 2022 and Amendment No. 4 to the Schedule 13D, filed with the Commission on July 15, 2022 (the Schedule 13D as amended and modified by Amendment No. 1, Amendment No. 2, Amendment No. 3 and Amendment No. 4, the “Schedule 13D”). Capitalized terms used but not otherwise defined in this Amendment have the meanings ascribed to such terms in the Schedule 13D. Except as expressly amended and supplemented by this Amendment, the Schedule 13D is not amended or supplemented in any respect, and the disclosures set forth in the Schedule 13D, other than as amended herein are incorporated by reference herein.

This Amendment, amends and corrects Amendment No. 4 to the Schedule 13D, as filed on July 15, 2022, to (a) disclose the 10b5-1 Plan entered into by B&S Cowart II Family LP on June 6, 2022, which was inadvertently left out of the disclosures in the original Amendment No. 3 to the Schedule 13D (provided that no sales have occurred under such 10b5-1 Plan adopted by B&S Cowart II Family LP to date), (2) to correct the ownership of Shelley T. Cowart, which was inadvertently misstated in the prior Schedule 13D filings, including Amendment No. 4 to the Schedule 13D, and (3) to update the beneficial ownership of the Reporting Persons as of the current filing date.

Item 3. Source of Amount of Funds or Other Compensation

Item 3 is hereby amended and modified to include the following (which shall be in addition to the information previously included in the Schedule 13D):

On July 20, 2022, Mr. Cowart sold 71,132 shares of Common Stock for an aggregate of $806,243, or a weighted average price of $11.33 per share, in open market transactions, pursuant to the 10b5-1 Plan entered into by Mr. Cowart, as discussed in Item 4, below.

On August 9, 2022, Mr. Cowart sold 71,133 shares of Common Stock for an aggregate of $589,611, or a weighted average price of $8.29 per share, in open market transactions, pursuant to the 10b5-1 Plan entered into by Mr. Cowart, as discussed in Item 4, below.

On September 13, 2022, Mr. Cowart sold 71,133 shares of Common Stock for an aggregate of $575,659, or a weighted average price of $8.08 per share, in open market transactions, pursuant to the 10b5-1 Plan entered into by Mr. Cowart, as discussed in Item 4, below.

Item 4. Purpose of the Transaction

Item 4 is hereby amended and modified to include the following (which shall be in addition to the information previously included in the Schedule 13D, and shall supersede and replace the information set forth in Item 5 of Amendment No. 3 to the Schedule 13D):

On June 6, 2022, both Mr. Cowart and B&S Cowart II Family LP (“Family LP”) entered into Rule 10b5-1 Sales Plans with Securities America, Inc. (“Securities America” and the “10b5-1 Plans”) pursuant to Rule 10b5-1 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), for the purpose of selling shares of Common Stock in open market transactions. The description of the 10b5-1 Plans set forth in Item 6 below is incorporated herein by reference in their entirety. The transactions contemplated by the 10b5-1 Plans will result in the disposition of securities of the Issuer. The 10b5-1 Plans are intended to comply with Rule 10b5-1 under the Exchange Act, which permits persons to enter into a binding, pre-arranged plan to buy or sell Issuer stock at a time when such person is not in possession of material, nonpublic information about the Issuer.

As described above, Mr. Cowart and Family LP have adopted, and each of the other Reporting Persons may adopt in the future, trading plans in accordance with Rule 10b5-1 under the Exchange Act, in order to sell Common Stock. Otherwise, the Reporting Persons have no plans or proposals that relate to or would result in any of the changes or transactions enumerated in subsections (a) - (j) of Item 4 of the General Instructions for Complying with Schedule 13D, although, depending on the factors discussed herein, the Reporting Persons may change their purpose or formulate different plans or proposals with respect thereto at any time.

The Reporting Persons retain the right to change their investment intent, and may, from time to time, acquire additional shares of Common Stock or other securities of the Company, or sell or otherwise dispose of (or enter into a plan or arrangements to sell or otherwise dispose of), all or part of the shares of Common Stock or other securities of the Company, if any, beneficially owned by them, in any manner permitted by law.

Additionally, Mr. Cowart, in his capacity as Chairman of the Board and Chief Executive Officer, may from time to time, become aware of, initiate, and/or be involved in discussions that relate to the transactions described in this Item 4 and thus retains his right to modify his plans with respect to the transactions described in this Item 4 and to formulate plans and proposals that could result in the occurrence of any such events, subject to applicable laws and regulations.

Item 5. Interest in Securities of the Issuer

Mr. Cowart may be deemed to beneficially own the securities held by Family LP, Holdings and VTX due to his control of such entities pursuant to the positions he holds with such entities discussed elsewhere in this Schedule 13D, and may be deemed to beneficially own the securities held by Shelley T. Cowart, his wife, including the shares held by the Cowart Trust, due to such relationship as husband and wife.  

⁽¹⁾ Includes 446,957 shares of Common Stock issuable upon exercise of options which are exercisable within 60 days of the date of this filing.

Except as set forth herein, as described below, and customary stock option agreements evidencing Mr. Cowart’s options which were granted by the Issuer, there are no contracts, arrangements, understandings or relationships among the Reporting Persons, or between the Reporting Persons and any other person, with respect to the securities of the Issuer.

10b5-1 Plans

Pursuant to the 10b-5-1 Plan entered into by Mr. Cowart, Mr. Cowart may sell up to 569,062 shares of Common Stock beneficially owned by Mr. Cowart, on the open market, subject to the satisfaction of certain conditions, including, among others, the Company’s trading price. All sales under the 10b5-1 Plan are to be made in the discretion of Securities America and in accordance with the terms, conditions and restrictions of the 10b5-1 Plan entered into with Mr. Cowart. Pursuant to the 10b5-1 Plan, sales commenced on July 12, 2022 and will continue until October 31, 2022 or until all of the shares of Common Stock to be sold under the 10b5-1 Plan are sold or the 10b5-1 Plan is otherwise terminated.

Pursuant to the 10b-5-1 Plan entered into by Family LP, Family LP may sell up to 2,000,000 shares of Common Stock beneficially owned by Family LP, on the open market, subject to the satisfaction of certain conditions, including, among others, the Company’s trading price. All sales under the 10b5-1 Plan are to be made in the discretion of Securities America and in accordance with the terms, conditions and restrictions of the 10b5-1 Plan entered into with Family LP. Pursuant to the 10b5-1 Plan, sales will commence beginning in November 2022, subject to the satisfaction of certain conditions, including, among others, the Company’s trading price and will continue until June 6, 2024, or until all of the shares of Common Stock to be sold under the 10b5-1 Plan are sold or the 10b5-1 Plan is otherwise terminated.

  The foregoing descriptions of the 10b5-1 Plans are qualified in their entirety by the full text of the 10b5-1 Plans, the form of which is included as an exhibit to this Schedule 13D and is incorporated herein by reference.

Item 7. Material to be Filed as Exhibits

Signatures

After reasonable inquiry and to the best of my knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.