(Amendment No. 5)*
4705 S. Apopka Vineland Road, Suite 206
* The remainder of this cover page shall be
filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for
any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
CUSIP No. 05614L100
|
13D
|
Page
2 of 9
|
(1) NAMES OF REPORTING PERSONS
Vintage Capital Management, LLC
|
|
(2) CHECK THE APPROPRIATE
BOX IF A MEMBER OF A GROUP (see instructions)
(a)
¨
(b)
¨
|
(3) SEC USE ONLY
|
(4) SOURCE OF FUNDS (see instructions)
OO
|
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
¨
|
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING PERSON WITH
|
(7) SOLE VOTING POWER
|
0 shares
|
(8) SHARED VOTING POWER
|
25,080,000 shares
|
(9) SOLE DISPOSITIVE POWER
|
0 shares
|
(10) SHARED DISPOSITIVE POWER
|
25,080,000 shares
|
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
25,080,000 shares
|
(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)
¨
|
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.9%
*
|
(14) TYPE OF REPORTING PERSON (see instructions)
OO
|
|
|
|
|
* Percentage calculated based on 168,637,384 shares of common stock, par value
$0.01 per share, of Babcock & Wilcox Enterprises, Inc. (the “Issuer”) which is the total number of shares
estimated to be outstanding as of April 30, 2018, as reported in the Issuer’s Prospectus
Supplement filed with the Securities and Exchange Commission on April 11, 2018.
CUSIP No. 05614L100
|
13D
|
Page
3 of 9
|
(1) NAMES OF REPORTING PERSONS
Kahn Capital Management, LLC
|
|
(2) CHECK THE APPROPRIATE
BOX IF A MEMBER OF A GROUP (see instructions)
(a)
¨
(b)
¨
|
(3) SEC USE ONLY
|
(4) SOURCE OF FUNDS (see instructions)
OO
|
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
¨
|
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING PERSON WITH
|
(7) SOLE VOTING POWER
|
0 shares
|
(8) SHARED VOTING POWER
|
25,080,000 shares
|
(9) SOLE DISPOSITIVE POWER
|
0 shares
|
(10) SHARED DISPOSITIVE POWER
|
25,080,000 shares
|
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
25,080,000 shares
|
(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)
¨
|
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.9%
*
|
(14) TYPE OF REPORTING PERSON (see instructions)
OO
|
|
|
|
|
*
Percentage calculated
based on 168,637,384 shares of common stock, par value $0.01 per share, of Babcock & Wilcox Enterprises, Inc. (the
“Issuer”) which is the total number of shares estimated to be outstanding as of April 30, 2018, as reported in
the Issuer’s Prospectus Supplement filed with the Securities and Exchange Commission on
April 11, 2018.
CUSIP
No. 05614L100
|
13D
|
Page
4 of 9
|
(1) NAMES
OF REPORTING PERSONS
Brian
R. Kahn
|
|
(2) CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions)
(a)
¨
(b)
¨
|
(3) SEC
USE ONLY
|
(4) SOURCE
OF FUNDS (see instructions)
OO
|
(5) CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
¨
|
(6) CITIZENSHIP
OR PLACE OF ORGANIZATION
United
States of America
|
NUMBER
OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING PERSON WITH
|
(7) SOLE
VOTING POWER
|
8,232
shares
|
(8) SHARED
VOTING POWER
|
25,080,000
shares
|
(9) SOLE
DISPOSITIVE POWER
|
8,232
shares
|
(10) SHARED
DISPOSITIVE POWER
|
25,080,000
shares
|
(11) AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
25,088,232
shares
|
(12) CHECK
IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)
¨
|
(13) PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.9%
*
|
(14) TYPE
OF REPORTING PERSON (see instructions)
IN
|
|
|
|
|
*
Percentage
calculated based on 168,637,384 shares of common stock, par value $0.01 per share, of Babcock & Wilcox Enterprises, Inc.
(the “Issuer”) which is the total number of shares estimated to be outstanding as of April 30, 2018, as reported
in the Issuer’s Prospectus Supplement filed with the Securities and Exchange Commission on
April 11, 2018.
Explanatory Note
This
Amendment No. 5 (this “Amendment”) amends and supplements the Schedule 13D filed on December 12, 2017, as amended on
January 4, 2018, February 2, 2018, March 6, 2018, and April 13, 2018 (as amended, the “Schedule 13D”), by the Reporting
Persons relating to the Common Stock of the Issuer. Information reported in the Schedule 13D remains in effect except to the extent
that it is amended, restated or superseded by
information contained in this Amendment. Capitalized terms used but not defined
in this Amendment have the respective meanings set forth in the Schedule 13D. All references in the Schedule 13D and this Amendment
to the “Statement” will be deemed to refer to the Schedule 13D as amended and supplemented by this Amendment.
|
Item 3.
|
Source and Amount of Funds or Other Consideration.
|
Item 3 is amended and restated in its entirety
as follows:
Of
the shares of Common Stock to which this Statement relates,
25,080,000
shares
were purchased on behalf of the Reporting Persons using the investment capital
of the Reporting Persons. The aggregate purchase price of the
25,080,000
shares
of Common Stock purchased was approximately $56,944,317 (excluding commissions). The remaining 8,232 shares of Common Stock represent
time-based restricted stock units (“RSUs”) awarded to Mr. Kahn, in his capacity as a director of the Issuer, as director
compensation under the Issuer’s Amended and Restated 2015 Long-Term Incentive Plan. Each RSU granted by the Issuer represents
the right to receive one share of Common Stock. The RSUs vested immediately upon the grant on January 3, 2018.
|
Item 4.
|
Purpose of Transaction.
|
Item 4 is amended to add the following:
On April 12, 2018, Vintage Capital entered
into an agreement (the “Steel Agreement”) with Steel Partners Holdings L.P. (“Steel Holdings”), pursuant
to which Steel Holdings agreed to backstop certain of Vintage Capital’s obligations under the Equity Commitment Agreement
with respect to the Rights Offering. Steel Holdings committed, subject to specified conditions, to fund a portion of Vintage Capital’s
backstop commitment up to a maximum aggregate amount of $46,500,000, but not to exceed such number of shares of Common Stock as
would result in Steel Holdings (together with its affiliates and associates) beneficially owning more than 29.95% of the then-outstanding
shares of Common Stock.
On April 30, 2018, the Rights Offering expired. In the Rights Offering, Vintage Capital purchased 18,480,000
shares of Common Stock pursuant to its fully exercised subscription privileges. As required by the Equity Commitment Agreement,
Vintage Capital was also obligated to purchase 23,409,809 shares of Common Stock (the “Backstop Shares”) pursuant to
its backstop obligations. Vintage Capital assigned the right to purchase all of the Backstop Shares to certain other individuals
and entities, including Steel Holdings in accordance with the Steel Agreement.
|
Item 5.
|
Interest in Securities of the Issuer.
|
Paragraphs (a), (b) and (c) of Item 5 are
amended and restated in their entirety as follows:
(a)
and (b) The responses of the Reporting Persons to rows 7, 8, 9, 10, 11 and 13 on the cover pages of this Statement are incorporated
herein by reference. As of 4:00 p.m., Eastern time, on May 3, 2018, the Reporting Persons beneficially owned
25,088,232
shares of Common Stock, representing approximately 14.9% of the outstanding shares of Common Stock. The percentage in this paragraph
relating to beneficial ownership of Common Stock is based on 168,637,384 shares of Common Stock, which is the total number of shares
of Common Stock estimated to be outstanding as of April 30, 2018, as reported in the Issuer’s Prospectus Supplement filed
with the Securities and Exchange Commission on April 11, 2018.
Kahn Capital, as a member and the majority
owner of Vintage Capital, may be deemed to have the power to direct the voting and disposition of the shares of Common Stock beneficially
owned by Vintage Capital, and may be deemed to be the indirect beneficial owner of such shares. Kahn Capital disclaims beneficial
ownership of such shares for all other purposes.
Mr. Kahn, as the manager of each of Vintage
Capital and Kahn Capital, may be deemed to have the power to direct the voting and disposition of the shares of Common Stock beneficially
owned by Vintage Capital, and may be deemed to be the indirect beneficial owner of such shares. Mr. Kahn disclaims beneficial ownership
of such shares for all other purposes.
To the knowledge of each of the Reporting
Persons, other than as set forth above, none of the persons named in Item 2 is the beneficial owner of any shares of Common Stock.
(c) Except
as set forth in Schedule A, none of the Reporting Persons has effected any transactions in the Common Stock in the 60 days prior
to the date of this Amendment that were not previously reported.
Schedule A
Transactions by the
Reporting Persons in the Past 60 Days
The following table sets forth all unreported
transactions with respect to the Common Stock effected in the last 60 days by or on behalf of the Reporting Persons, inclusive
of any transactions effected through 4:00 p.m., Eastern time, on May 3, 2018.
Person Effecting the Transaction
|
Transaction Date
|
Nature of Transaction
|
Number of Securities
|
Price Per Share
|
Vintage Capital Management, LLC
|
April 30, 2018
|
Purchase of Common Stock pursuant to subscription privileges in the Rights Offering
|
18,480,000
|
$2.00
|
SIGNATURES
After reasonable inquiry and to the best
of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: May 3, 2018
|
VINTAGE CAPITAL MANAGEMENT, LLC
|
|
|
|
|
|
By:
|
/s/ Brian R. Kahn
|
|
|
Name:
|
Brian R. Kahn
|
|
|
Title:
|
Manager
|
|
|
|
|
|
KAHN CAPITAL MANAGEMENT, LLC
|
|
|
|
|
|
By:
|
/s/ Brian R. Kahn
|
|
|
Name:
|
Brian R. Kahn
|
|
|
Title:
|
Manager
|
|
|
|
|
|
|
|
|
|
/s/ Brian R. Kahn
|
|
Brian R. Kahn
|
EXHIBIT INDEX
Exhibit
Number
|
Description
|
1
|
Joint Filing Agreement (incorporated by reference to Exhibit 1 to the Schedule 13G filed by Vintage Capital Management, LLC, Kahn Capital Management, LLC and Brian R. Kahn on July 27, 2017).
|
2
|
Agreement, dated as of January 3, 2018, among Babcock & Wilcox Enterprises, Inc., Vintage Capital Management, LLC, Kahn Capital Management, LLC and Brian R. Kahn (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Babcock & Wilcox Enterprises, Inc. on January 3, 2018).
|
3
|
Consent Letter, dated January 31, 2018, to Babcock & Wilcox Enterprises, Inc. from Vintage Capital Management, LLC, Kahn Capital Management, LLC and Brian R. Kahn (incorporated by reference to Exhibit 3 to the Schedule 13D/A filed by Vintage Capital Management, LLC, Kahn Capital Management, LLC and Brian R. Kahn on February 2, 2018).
|
4
|
Equity Commitment Agreement, dated April 10, 2018, by and between Babcock & Wilcox Enterprises, Inc. and Vintage Capital Management, LLC (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed by Babcock & Wilcox Enterprises, Inc. on April 11, 2018).
|