Sec Form 13D Filing - Cowart Benjamin P filing for Vertex Energy Inc. (VTNR) - 2022-10-11

 

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.

 

 

Cusip No. 92534K107

Schedule 13D/A (Amendment No. 5)

Page 2 of 13

 

1.		Name of Reporting Person   Benjamin P. Cowart
2.		Check the Appropriate Box if a Member of a Group (a)  ☐            (b)  ☒
3.		SEC Use Only
4.		Source of Funds   PF, OO – See Item 3 of Statement
5.		Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
6.		Citizenship or Place of Organization   U.S.A.

Number of Shares Beneficially Owned By Each Reporting Person With				7.		Sole Voting Power   780,943(1)
				8.		Shared Voting Power   6,203,171
				9.		Sole Dispositive Power   780,943(1)
				10.		Shared Dispositive Power   6,203,171

11.		Aggregate Amount Beneficially Owned by Each Reporting Person   6,984,114 Shares(1)
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares   ☐*
13.		Percent of Class Represented by Amount in Row (11)   9.2%(2)
14.		Type of Reporting Person   IN

⁽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.

 

 

Cusip No. 92534K107

Schedule 13D/A (Amendment No. 5)

Page 3 of 13

 

1.		Name of Reporting Person   Shelley T. Cowart
2.		Check the Appropriate Box if a Member of a Group (a)  ☐            (b)   ☒
3.		SEC Use Only
4.		Source of Funds   PF, OO – See Item 3 of Statement
5.		Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
6.		Citizenship or Place of Organization   U.S.A.

Number of Shares Beneficially Owned By Each Reporting Person With				7.		Sole Voting Power   —
				8.		Shared Voting Power   244,299
				9.		Sole Dispositive Power   —
				10.		Shared Dispositive Power   244,299

11.		Aggregate Amount Beneficially Owned by Each Reporting Person   244,299 Shares
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares   ☐*
13.		Percent of Class Represented by Amount in Row (11)   *%(1)
14.		Type of Reporting Person   IN

* 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.

 

 

Cusip No. 92534K107

Schedule 13D/A (Amendment No. 5)

Page 4 of 13

1.		Name of Reporting Person   The Shelley T. Cowart 2016 Grantor Retained Annuity Trust
2.		Check the Appropriate Box if a Member of a Group (a)  ☐            (b)  ☒
3.		SEC Use Only
4.		Source of Funds   OO – See Item 3 of Statement
5.		Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
6.		Citizenship or Place of Organization   Texas

Number of Shares Beneficially Owned By Each Reporting Person With				7.		Sole Voting Power   —
				8.		Shared Voting Power   70,214
				9.		Sole Dispositive Power   —
				10.		Shared Dispositive Power   70,214

11.		Aggregate Amount Beneficially Owned by Each Reporting Person   70,214 Shares
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares   ☐*
13.		Percent of Class Represented by Amount in Row (11)   *%(1)
14.		Type of Reporting Person   OO

* 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. 

 

 

Cusip No. 92534K107

Schedule 13D/A (Amendment No. 5)

Page 5 of 13

1.		Name of Reporting Person   B&S Cowart II Family LP
2.		Check the Appropriate Box if a Member of a Group (a)  ☐            (b)  ☒
3.		SEC Use Only
4.		Source of Funds   PF, OO – See Item 3 of Statement
5.		Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
6.		Citizenship or Place of Organization   Texas

Number of Shares Beneficially  Owned By Each Reporting Person With				7.		Sole Voting Power   —
				8.		Shared Voting Power   5,850,607
				9.		Sole Dispositive Power   —
				10.		Shared Dispositive Power   5,850,607

11.		Aggregate Amount Beneficially Owned by Each Reporting Person   5,850,607 Shares
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares   ☐*
13.		Percent of Class Represented by Amount in Row (11)   7.7%(1)
14.		Type of Reporting Person   PN

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

 

 

Cusip No. 92534K107

Schedule 13D/A (Amendment No. 5)

Page 6 of 13

 

1.		Name of Reporting Person   Vertex Holdings, LP
2.		Check the Appropriate Box if a Member of a Group (a)  ☐            (b)  ☒
3.		SEC Use Only
4.		Source of Funds   SC – See Item 3 of Statement
5.		Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
6.		Citizenship or Place of Organization   Texas

Number of Shares Beneficially Owned By Each Reporting Person With				7.		Sole Voting Power   —
				8.		Shared Voting Power   7,500
				9.		Sole Dispositive Power   —
				10.		Shared Dispositive Power   7,500

11.		Aggregate Amount Beneficially Owned by Each Reporting Person   7,500
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares   ☐*
13.		Percent of Class Represented by Amount in Row (11)   *%(1)
14.		Type of Reporting Person   CO

* 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.

 

 

Cusip No. 92534K107

Schedule 13D/A (Amendment No. 5)

Page 7 of 13

 

1.		Name of Reporting Person   VTX, Inc.
2.		Check the Appropriate Box if a Member of a Group (a)  ☐            (b)   ☒
3.		SEC Use Only
4.		Source of Funds   SC – See Item 3 of Statement
5.		Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
6.		Citizenship or Place of Organization   Texas

Number of Shares Beneficially  Owned By Each Reporting Person With				7.		Sole Voting Power   —
				8.		Shared Voting Power   100,765
				9.		Sole Dispositive Power   —
				10.		Shared Dispositive Power   100,765

11.		Aggregate Amount Beneficially Owned by Each Reporting Person   100,765 Shares
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares   ☐*
13.		Percent of Class Represented by Amount in Row (11)   *%(1)
14.		Type of Reporting Person   CO

* 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.

 

 

Cusip No. 92534K107

Schedule 13D/A (Amendment No. 5)

Page 8 of 13

 

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.

 

 

Cusip No. 92534K107

Schedule 13D/A (Amendment No. 5)

Page 9 of 13

 

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

 

(a)

As of the close of business on September 30, 2022, the Reporting Persons together beneficially own in aggregate 6,984,114 shares of Common Stock representing 9.2% of the 75,608,826 shares of the Issuer’s issued and outstanding Common Stock, as confirmed by the Issuer’s transfer agent on such date (the “Outstanding Shares”), each beneficially own the following shares of Common Stock, based on the Outstanding Shares.

 

(i)

Benjamin P. Cowart is the beneficial owner of 6,984,114 shares of Common Stock (including 446,957 shares of Common Stock issuable upon exercise of options to purchase shares of Common Stock which are exercisable within 60 days of September 30, 2022), representing 9.2% of the Outstanding Shares;

 

(ii )

Shelley T. Cowart, is the beneficial owner of 244,299 shares of Common Stock, representing less than 1% of the Outstanding Shares;

 

(iii)

Cowart Trust is the beneficial owner of 70,214 shares of Common Stock, representing less than 1% of the Outstanding Shares;

 

(iv)

Family LP is the beneficial owner of 5,850,607 shares of Common Stock, representing 7.7% of the Outstanding Shares;

 

(v)

Holdings is the beneficial owner of 7,500 shares of Common Stock, representing less than 1% of the Outstanding Shares; and

 

(vi)

VTX is the beneficial owner of 100,765 shares of Common Stock, representing less than 1% of the Outstanding Shares.

 

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.  

 

 

Cusip No. 92534K107

Schedule 13D/A (Amendment No. 5)

Page 10 of 13

 

(b)	The following table summarizes the number of shares beneficially owned by each Reporting Person, as to which they have (1) sole power to vote or to direct the vote and sole power to dispose or to direct the disposition, and (2) shared power to dispose or to direct the disposition:

 

Reporting Person	Sole Power to Vote or to Direct the Vote and Sole Power to Dispose or to Direct the Disposition	Shared Power to Dispose or to Direct the Disposition
Benjamin P. Cowart	780,943(1)	6,203,171
Shelley T. Cowart	—	244,299
Cowart Trust	—	70,214
Family LP	—	5,850,607
Holdings	—	7,500
VTX	—	100,765

 

⁽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.

 

(c)	The information in Item 3 is incorporated by reference into this Item 5(c).

 

(d)	No other person has the right to receive or the power to vote or to direct the vote, or to dispose or direct the disposition, of sale of the securities beneficially owned by the Reporting Persons as described in Item 5(a), above.

 

(e)

N/A.

 

Item 6. Contracts, Arrangements, Understanding or Relationships with Respect to Securities of the Issuer

 

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.

 

 

Cusip No. 92534K107

Schedule 13D/A (Amendment No. 5)

Page 11 of 13

 

Item 7. Material to be Filed as Exhibits

 

Exhibit No.	Description
99.1	Form of 2013 Stock Incentive Plan Stock Option Award (Previously filed as Exhibit 10.1 to the Company’s Report on Form 8-K filed with the SEC on September 30, 2013 (File Number 001-11476) and incorporated herein by reference)
99.2	Form of 2019 Equity Incentive Plan Stock Option Agreement (Filed as Exhibit 10.3 to the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission on June 23, 2020, and incorporated herein by reference)(File No. 001-11476)
99.3	Form of Rule 10b5-1 Sales Plan (Filed as Exhibit 99.3 to Amendment No. 3 to the Schedule 13D filed by the Reporting Persons with the Securities and Exchange Commission on July 15, 2022, and incorporated herein by reference)

 

 

Cusip No. 92534K107

Schedule 13D/A (Amendment No. 5)

Page 12 of 13

 

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.

 

Date: October 7, 2022
/s/ Benjamin P. Cowart
Benjamin P. Cowart
Date: October 7, 2022

/s/ Shelley T. Cowart
Shelley T. Cowart
Date: October 7, 2022
The Shelley T. Cowart 2016 Grantor Retained Annuity Trust
	By:	/s/ Benjamin P. Cowart
	Its:	Manager
	Printed Name:	Benjamin P. Cowart
Date: October 7, 2022
B&S Cowart II Family LP
	By:	/s/ Benjamin P. Cowart
	Its:	Manager
	Printed Name:	Benjamin P. Cowart
Date: October 7, 2022
Vertex Holdings, LP
	By:	/s/ Benjamin P. Cowart
	Its:	Manager
	Printed Name:	Benjamin P. Cowart
Date: October 7, 2022

 

 

Cusip No. 92534K107

Schedule 13D/A (Amendment No. 5)

Page 13 of 13

 

VTX Inc.
	By:	/s/ Benjamin P. Cowart
	Its:	Manager
	Printed Name:	Benjamin P. Cowart