0001144204-18-005489.txt : 20180202 0001144204-18-005489.hdr.sgml : 20180202 20180202163053 ACCESSION NUMBER: 0001144204-18-005489 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20180202 DATE AS OF CHANGE: 20180202 GROUP MEMBERS: BRIAN R. KAHN GROUP MEMBERS: KAHN CAPITAL MANAGEMENT, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Babcock & Wilcox Enterprises, Inc. CENTRAL INDEX KEY: 0001630805 STANDARD INDUSTRIAL CLASSIFICATION: HEATING EQUIPMENT, EXCEPT ELECTRIC & WARM AIR FURNACES [3433] IRS NUMBER: 472783641 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-89270 FILM NUMBER: 18571110 BUSINESS ADDRESS: STREET 1: 13024 BALLANTYNE CORPORATE PLACE STREET 2: SUITE 700 CITY: CHARLOTTE STATE: NC ZIP: 28277 BUSINESS PHONE: 704-625-4900 MAIL ADDRESS: STREET 1: 13024 BALLANTYNE CORPORATE PLACE STREET 2: SUITE 700 CITY: CHARLOTTE STATE: NC ZIP: 28277 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Vintage Capital Management LLC CENTRAL INDEX KEY: 0001511498 IRS NUMBER: 272297824 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 4705 S APOPKA VINELAND ROAD SUITE 210 CITY: ORLANDO STATE: FL ZIP: 32819 BUSINESS PHONE: 407-909-8015 MAIL ADDRESS: STREET 1: 4705 S APOPKA VINELAND ROAD SUITE 210 CITY: ORLANDO STATE: FL ZIP: 32819 SC 13D/A 1 tv484750_sc13da.htm SC 13D/A

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 13D

 

Under the Securities Exchange Act of 1934

(Amendment No. 2)*

 

Babcock & Wilcox Enterprises, Inc.

 

(Name of Issuer)

 

Common Stock, par value $0.01 per share

 

(Title of Class of Securities)

 

05614L100

 

(CUSIP Number)

 

Vintage Capital Management, LLC

4705 S. Apopka Vineland Road, Suite 206

Orlando, FL 32819

(407) 909-8015

 

With a copy to:

Bradley L. Finkelstein

Douglas K. Schnell

Wilson Sonsini Goodrich & Rosati

Professional Corporation

650 Page Mill Road

Palo Alto, CA 94304

(650) 493-9300

 

(Name, Address and Telephone Number of Person Authorized to

Receive Notices and Communications)

 

January 31, 2018

 

(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 which 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: ¨

 

Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are

to be sent.

 

* 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.

 

The information required on 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 (however, see the Notes).

 

 

 

 

 

 

CUSIP No. 05614L100 13D Page 2 of 7
(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
6,600,000 shares
(9) SOLE DISPOSITIVE POWER
0 shares
(10) SHARED DISPOSITIVE POWER
6,600,000 shares
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,600,000 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 44,049,127 shares of common stock, par value $0.01 per share, outstanding as of October 31, 2017, as reported in the Form 10-Q for the quarterly period ended September 30, 2017, of Babcock & Wilcox Enterprises, Inc.

 

  

 

 

CUSIP No. 05614L100 13D Page 3 of 7
(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
6,600,000 shares
(9) SOLE DISPOSITIVE POWER
0 shares
(10) SHARED DISPOSITIVE POWER
6,600,000 shares
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,600,000 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 44,049,127 shares of common stock, par value $0.01 per share, outstanding as of October 31, 2017, as reported in the Form 10-Q for the quarterly period ended September 30, 2017, of Babcock & Wilcox Enterprises, Inc.

 

  

 

 

CUSIP No. 05614L100 13D Page 4 of 7
(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
0 shares
(8) SHARED VOTING POWER
6,600,000 shares
(9) SOLE DISPOSITIVE POWER
0 shares
(10) SHARED DISPOSITIVE POWER
6,600,000 shares
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,600,000 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)
IN
       

 

 

 

 

[*] Percentage calculated based on 44,049,127 shares of common stock, par value $0.01 per share, outstanding as of October 31, 2017, as reported in the Form 10-Q for the quarterly period ended September 30, 2017, of Babcock & Wilcox Enterprises, Inc.

 

  

 

 

Explanatory Note

 

This Amendment No. 2 (this “Amendment”) amends and supplements the Schedule 13D filed on December 12, 2017, as amended on January 4, 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 4.Purpose of Transaction.

 

Item 4 is amended to add the following:

 

By letter dated January 31, 2018 (the “Consent Letter”), the Reporting Persons consented to a waiver of the Agreement to provide for an increase in the size of the Board to no more than 11 directors until June 30, 2018.

 

The foregoing description of the Consent Letter is qualified in its entirety by reference to the Consent Letter, a copy of which is attached to this Statement as Exhibit 3 and incorporated by reference.

 

Item 6.Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

 

Item 6 is hereby amended and restated in its entirety as follows:

 

Other than as described in this Statement, to the knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the Reporting Persons or between the Reporting Persons and any other persons with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

 

Item 7.Material to be Filed as Exhibits.

 

Item 7 is hereby amended to add the following:

 

Exhibit Number

Description

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.

 

 Page 5 of 7 

 

 

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: February 2, 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

 

 Page 6 of 7 

 

 

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.

 

 Page 7 of 7 

 EX-99.3 2 tv484750_ex99-3.htm EXHIBIT 3

 

Exhibit 3

 

Vintage Capital Management, LLC

4704 S. Apopka Vineland Road, Suite 206

Orlando, FL 32819

January 31, 2018

 

Babcock & Wilcox Enterprises, Inc.

13024 Ballantyne Corporate Place, Suite 700

Charlotte, NC 28277

Attention: J. André Hall

 

Reference is made to the Agreement, dated as of January 3, 2018 (the “Agreement”), among Babcock & Wilcox Enterprises, Inc., Vintage Capital Management, LLC, Kahn Capital Management, LLC and Brian R. Kahn. Capitalized terms used in this letter and not otherwise defined have the meaning given to them in the Agreement.

 

The Shareholders confirm that they consent to an increase in the size of the Board to no more than 11 directors until June 30, 2018. For the avoidance of doubt, after June 30, 2018, and during the remainder of the Nomination Period, the Board will be composed of no more than 10 directors.

 

 

  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
  Brian R. Kahn
 
  /s/ Brian R. Kahn