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. 5)
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 toRule 14d-1. |
| x | issuer tender offer subject toRule 13e-4. |
| ¨ | going-private transaction subject toRule 13e-3. |
| ¨ | amendment to Schedule 13D underRule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender offer: x
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. 5 TO SCHEDULE TO
This Amendment No. 5 (this “Amendment No. 5”) 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, by Amendment No. 3 filed with the SEC on June 26, 2014 and by Amendment No. 4 filed with the SEC on July 7, 2014. The Schedule TO, as amended by this Amendment No. 5, 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. 5 is 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. 5 by reference. All capitalized terms in this Amendment No. 5 and not otherwise defined herein have the respective meanings ascribed to them in the Schedule TO. You should read this Amendment No. 5 together with the Schedule TO and the 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. 5, is intended to satisfy the reporting requirements of Rule 13e-4 under the Securities Exchange Act of 1934, as amended.
| Item 4. | Terms of the Transaction. |
Item 4 of the Schedule TO is hereby amended and supplemented by adding the following:
The Exchange Offer expired at midnight, New York City Time, on August 21, 2014. On August 22, 2014, the Company announced that it has accepted for exchange all of the 1,607,596 validly tendered OP Units, consisting of 555,801 Series ES OP Units, 168,486 Series 250 OP Units, 313,514 Series 60 OP Units and 569,795 Series PR OP Units, and that it would arrange to deliver one unit of the Company’s newly-issued Private Perpetual Preferred Operating Partnership Units (the “Preferred Units”) for each OP Unit acquired as soon as practicable.
On a pro forma basis after the settlement of the Exchange Offer and the issuance of the Preferred Units in connection therewith, there will be a total of 265,736,246 OP Units outstanding, consisting of 45,578,334 Series ES OP Units, 6,409,528 Series 250 OP Units, 12,256,920 Series 60 OP Units and 201,491,464 Series PR OP Units, and a total of 1,607,596 Preferred Units outstanding.
The full text of the press release announcing the results of the Exchange Offer is filed as Exhibit (a)(5)(D) to this Schedule TO and is incorporated herein by reference.
| | |
Exhibit No. | | Description |
| |
| (a)(1)(A)* | | Offer to Exchange, dated May 28, 2014. |
| |
| (a)(1)(B)(i)* | | Letter of Transmittal to the holders of Series ES OP Units, dated May 28, 2014. |
| |
| (a)(1)(B)(ii)* | | Letter of Transmittal to the holders of Series 60 OP Units, dated May 28, 2014. |
| |
| (a)(1)(B)(iii)* | | Letter of Transmittal to the holders of Series 250 OP Units, dated May 28, 2014. |
| |
| (a)(1)(B)(iv)* | | Letter of Transmittal to the holders of Series PR OP Units, dated May 28, 2014. |
| | |
| |
| (a)(1)(C)* | | Form of Letter to Brokers, Dealers and Other Nominees. |
| |
| (a)(1)(D)* | | Form of Letter to Clients for use by Brokers, Dealers and Other Nominees. |
| |
| (a)(1)(E)* | | Form of Cover Letter to Beneficial Holders of OP Units. |
| |
| (a)(1)(F)* | | Form of Instruction Booklet. |
| |
| (a)(1)(G)* | | Form of Document Package Guide. |
| |
| (a)(1)(H)** | | Letter to holders of OP Units, dated June 19, 2014. |
| |
| (a)(1)(I)*** | | Letter to holders of OP Units, dated June 26, 2014. |
| |
| (a)(1)(J)*** | | Letter from the Company, dated June 26, 2014. |
| |
| (a)(2) | | Not applicable. |
| |
| (a)(3) | | Not applicable. |
| |
| (a)(4) | | Not applicable. |
| |
| (a)(5)(A)* | | Press release of Empire State Realty Trust, Inc., dated May 28, 2014. |
| |
| (a)(5)(B)* | | Transcript of recorded investor presentation by Anthony E. Malkin and Thomas N. Keltner, Jr., dated May 28, 2014. |
| |
| (a)(5)(C)*** | | Press release of Empire State Realty Trust, Inc., dated June 26, 2014. |
| |
| (a)(5)(D)**** | | Press release of Empire State Realty Trust, Inc., dated August 22, 2014. |
| |
| (b) | | Not applicable. |
| |
| (d)(1) | | Amended and Restated Agreement of Limited Partnership of Empire State Realty OP, L.P., dated October 1, 2013, incorporated by reference to Exhibit 10.1 to the Registrant’s Form 10-Q filed with the SEC on November 12, 2013. |
| |
| (d)(2) | | Secured Revolving and Term Credit Facility dated October 7, 2013 among Empire State Realty OP, L.P., ESRT Empire State Building, L.L.C., Empire State Realty Trust, Inc., the subsidiaries of Empire State Realty OP, L.P. from time to time party thereto, Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Bank USA and the other lenders party thereto, incorporated by reference to Exhibit 10.19 to the Registrant’s Form 10-Q filed with the SEC on November 12, 2013. |
| |
| (d)(3) | | Tax Protection Agreement among Empire State Realty Trust, Inc., Empire State Realty OP, L.P., and the parties named therein, dated October 7, 2013, incorporated by reference to Exhibit 10.3 to the Registrant’s Form 10-Q filed with the SEC on November 12, 2013. |
| |
| (g) | | Not applicable. |
| |
| (h) | | Not applicable. |
| *** | Previously filed as an exhibit to Amendment No. 3 to the Schedule TO, filed on June 26, 2014. |
| ** | Previously filed as an exhibit to Amendment No. 2 to the Schedule TO, filed on June 19, 2014. |
| * | Previously filed as an exhibit to the Schedule TO, filed on May 28, 2014. |
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.
| | | | | | |
| | | | EMPIRE STATE REALTY OP, L.P. |
| | | |
| | | | By: | | Empire State Realty Trust, Inc., as general partner |
| | | |
| Date: August 22, 2014 | | | | By: | | /s/ Thomas N. Keltner, Jr. |
| | | | Name: | | Thomas N. Keltner, Jr. |
| | | | Title: | | Executive Vice President and General Counsel |
