SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 4)
Empire State Realty OP, L.P.
(Name of Subject Company (Issuer) and Filing Person (Offeror))
| Series ES operating partnership units | | 292102100 |
| Series 60 operating partnership units | | 292102209 |
| Series 250 operating partnership units | | 292102308 |
| Series PR operating partnership units | | — |
| (Title of Class of Securities) | | (CUSIP Number of Class of Securities) |
Thomas N. Keltner, Jr.
Executive Vice President and General Counsel
Empire State Realty Trust, Inc.
One Grand Central Place
60 East 42nd Street
New York, NY 10165
(212) 687-8700
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Yoel Kranz
Ettore Santucci
Goodwin Procter LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018
(212) 813-8800
Calculation of Filing Fee
| | | |
| Transaction Valuation(1) | | Amount of Filing Fee(2) |
| $ 248,850,000 | | $32,052 |
| (1) | Estimated solely for purpose of calculating the Filing Fee pursuant to Rule 0-11 under the Securities Exchange Act of 1934, as amended. The valuation is calculated based on the product of multiplying (a) 15,000,000, the number of operating partnership units of Empire State Realty OP, L.P. proposed to be exchanged, by (b) $16.59, which is the average of the high and low price for the Class A common stock of Empire State Realty Trust, Inc. (“ESRT”) on the New York Stock Exchange on May 23, 2014. Holders of operating partnership units may elect to have their units redeemed for cash equal to the value of the ESRT Class A common stock or, at the election of ESRT, for shares of ESRT Class A common stock. |
| (2) | The Amount of Filing Fee calculated in accordance with Rule 0-11(b) of the Securities Exchange Act of 1934, as amended, equals $128.80 for each $1,000,000 of the value of the transaction. |
| x | Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and date of its filing. |
| | Amount Previously Paid: $32,052 | | Filing Party: Empire State Realty OP, L.P. |
| | | |
| | Form or Registration No.: Schedule TO | | Date Filed: May 28, 2014 |
| ¨ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
| ¨ | third-party tender offer subject to Rule 14d-1. |
| x | issuer tender offer subject to Rule 13e-4. |
| ¨ | going-private transaction subject to Rule 13e-3. |
| ¨ | amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender offer: ¨
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
| ¨ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer). |
| ¨ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer). |
AMENDMENT NO. 4 TO SCHEDULE TO
This Amendment No. 4 (this “Amendment No. 4”) amends and supplements the Tender Offer Statement on Schedule TO (as amended, the “Schedule TO”), originally filed with the Securities and Exchange Commission (the “SEC”) on May 28, 2014 and amended by Amendment No. 1 filed with the SEC on June 17, 2014, by Amendment No. 2 filed with the SEC on June 19, 2014 and by Amendment No. 3 filed with the SEC on June 26, 2014. The Schedule TO, as amended by this Amendment No. 4, relates to the offer (the “Exchange Offer”) by Empire State Realty OP, L.P., a Delaware limited partnership (the “Company”), to acquire up to 15,000,000 operating partnership units on a pro rata basis from all tendering holders of (i) Series ES operating partnership units (“Series ES OP Units”), (ii) Series 60 operating partnership units (“Series 60 OP Units”), (iii) Series 250 operating partnership units (“Series 250 OP Units”), and (iv) Series PR operating partnership units (“Series PR OP Units” and, together with Series ES OP Units, Series 60 OP Units and Series 250 OP Units, the “OP Units”).
This Amendment No. 4is being filed in order to provide the additional information set forth below. Except as amended hereby as set forth below, all terms of the Exchange Offer and all other disclosures set forth in the Schedule TO and the exhibits thereto remain unchanged and are hereby expressly incorporated into this Amendment No. 4 by reference.All capitalized terms in this Amendment No. 4 and not otherwise defined herein have the respective meaning ascribed to them in the Schedule TO. You should read this Amendment No. 4 together with the Schedule TO andthe Offer to Exchange, dated May 28, 2014, as amended on June 17, 2014 and June 26, 2014 (the “Offer to Exchange”), a copy of which was filed as Exhibit (a)(1)(A) to the Schedule TO.
The Schedule TO as amended and supplemented by this Amendment No. 4 is intended to satisfy the reporting requirements of Rule 13e-4 under the Securities Exchange Act of 1934, as amended.
Item 11. Additional Information
Item 11 of the Schedule TO is hereby amended and supplemented by the following:
(b) Other Material Information. As described in the Offer to Exchange, a condition of the Exchange Offer is that at least 1,200,000 OP Units be validly tendered and not properly withdrawn prior to the expiration of the Exchange Offer. As of July 7, 2014, more than 1,200,000 OP Units have been validly tendered in connection with the Exchange Offer. Accordingly, subject to the right of holders to withdraw tendered OP Units at any time prior to expiration and assuming all other conditions to the Exchange Offer are satisfied or waived, the Company expects the Exchange Offer will expire atmidnight, New York City Time, on August 21, 2014 and close promptly thereafter, unless further extended or earlier terminated by the Company.
SIGNATURE
After due 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.
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| | | | |
| | | | | EMPIRE STATE REALTY OP, L.P. |
| | | | | By: | | Empire State Realty Trust, Inc., as general partner |
| | | | |
| Date: July 7, 2014 | | | | By: | | /s/ Thomas N. Keltner, Jr. |
| | | | | Name: | | Thomas N. Keltner, Jr. |
| | | | | Title: | | Executive Vice President and General Counsel |
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