(Amendment No. 4)*
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
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13D
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Page
2 of 8
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(1) NAMES OF REPORTING PERSONS
Vintage Capital Management, LLC
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(2) CHECK THE APPROPRIATE
BOX IF A MEMBER OF A GROUP (see instructions)
(a)
¨
(b)
¨
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS (see instructions)
OO
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
¨
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING PERSON WITH
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(7) SOLE VOTING POWER
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0 shares
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(8) SHARED VOTING POWER
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6,600,000 shares
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(9) SOLE DISPOSITIVE POWER
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0 shares
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(10) SHARED DISPOSITIVE POWER
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6,600,000 shares
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,600,000 shares
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(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)
¨
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.9%
*
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(14) TYPE OF REPORTING PERSON (see instructions)
OO
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|
|
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*
Percentage calculated based on 44,381,104 shares of common stock, par value $0.01 per share, outstanding as of April 5, 2018,
as reported in the Definitive Proxy Statement on Schedule 14A filed by Babcock & Wilcox Enterprises, Inc. on April 12,
2018.
CUSIP No. 05614L100
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13D
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Page
3 of 8
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(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
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
¨
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(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
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(9) SOLE DISPOSITIVE POWER
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0 shares
|
(10) SHARED DISPOSITIVE POWER
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6,600,000 shares
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,600,000 shares
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(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)
¨
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.9%
*
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(14) TYPE OF REPORTING PERSON (see instructions)
OO
|
|
|
|
|
*
Percentage calculated based on 44,381,104 shares of common stock, par value $0.01 per share, outstanding as of April 5, 2018,
as reported in the Definitive Proxy Statement on Schedule 14A filed by Babcock & Wilcox Enterprises, Inc. on April 12,
2018.
CUSIP
No. 05614L100
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13D
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Page
4 of 8
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(1) NAMES
OF REPORTING PERSONS
Brian
R. Kahn
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(2) CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions)
(a)
¨
(b)
¨
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(3) SEC
USE ONLY
|
(4) SOURCE
OF FUNDS (see instructions)
OO
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(5) CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
¨
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(6) CITIZENSHIP
OR PLACE OF ORGANIZATION
United
States of America
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NUMBER
OF SHARES
BENEFICIALLY OWNED BY EACH
REPORTING PERSON WITH
|
(7) SOLE
VOTING POWER
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8,232
shares
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(8) SHARED
VOTING POWER
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6,600,000
shares
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(9) SOLE
DISPOSITIVE POWER
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8,232
shares
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(10) SHARED
DISPOSITIVE POWER
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6,600,000
shares
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(11) AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,608,232
shares
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(12) CHECK
IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)
¨
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(13) PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.9%
*
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(14) TYPE
OF REPORTING PERSON (see instructions)
IN
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|
|
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*
Percentage calculated based on 44,381,104 shares of common stock, par value $0.01 per share, outstanding as of April 5, 2018,
as reported in the Definitive Proxy Statement on Schedule 14A filed by Babcock & Wilcox Enterprises, Inc. on April 12,
2018.
Explanatory Note
This
Amendment No. 4 (this “Amendment”) amends and supplements the Schedule 13D filed on December 12, 2017, as amended on
January 4, 2018, February 2, 2018 and March 6, 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.
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Item 3.
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Source and Amount of Funds or Other Consideration.
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Item 3 is amended and restated in its entirety
as follows:
Of the shares of Common Stock to which this
Statement relates, 6,600,000 shares were purchased on behalf of the Reporting Persons using the investment capital of the Reporting
Persons. The aggregate purchase price of the 6,600,000 shares of Common Stock purchased was approximately $19,984,317 (excluding
commissions). The remaining 8,232 shares of Common Stock r
epresent 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.
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Item 4.
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Purpose of Transaction.
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Item 4 is amended to add the following:
On April 10, 2018, the Issuer and Vintage
Capital entered into a new equity commitment agreement (the “Equity Commitment Agreement”), which amended and restated
the prior letter agreement, dated as of March 1, 2018, between the Issuer and Vintage Capital. Pursuant to the Equity Commitment
Agreement, Vintage Capital agreed to fully backstop the Rights Offering for the purpose of providing at least $245 million of new
capital. The Equity Commitment Agreement provides for a backstop commitment from Vintage Capital to purchase shares of Common Stock
representing any unsold portion of the Rights Offering at a price of $2.00 per share of Common Stock.
The foregoing description of the Equity
Commitment Agreement does not purport to be complete and is qualified in its entirety by reference to the Equity Commitment Agreement,
a copy of which is attached to this Statement as Exhibit 4 and incorporated by reference.
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Item 5.
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Interest in Securities of the Issuer.
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Paragraphs (a) and (b) 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 April 13, 2017, the Reporting Persons beneficially owned 6,608,232 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 44,381,104 shares of Common Stock outstanding as of April 5, 2018, as reported
in the
Definitive Proxy Statement on Schedule 14A filed by the Issuer on April 12, 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..
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Item 7.
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Material to be Filed as Exhibits.
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Item 7 is amended to replace Exhibit 4 with
the following:
Exhibit
Number
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Description
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4
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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).
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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: April 13, 2018
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VINTAGE CAPITAL MANAGEMENT, LLC
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By:
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/s/ Brian R. Kahn
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Name: Brian R. Kahn
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Title: Manager
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KAHN CAPITAL MANAGEMENT, LLC
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By:
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/s/ Brian R. Kahn
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Name: Brian R. Kahn
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Title: Manager
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/s/ Brian R. Kahn
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Brian R. Kahn
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EXHIBIT INDEX
Exhibit
Number
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Description
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1
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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).
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2
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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).
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3
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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).
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4
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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).
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