UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 3, 2017
EMPIRE STATE REALTY TRUST, INC.
(Exact Name of Registrant as Specified in its Charter)
| Maryland | 001-36105 | 37-1645259 | ||
| (State or other Jurisdiction of Incorporation or Organization) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
| 111 West 33rd Street 12th Floor New York, New York |
10120 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s telephone number, including area code: (212) 687-8700
Not Applicable
(Former name or former address, if changed from last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 8.01. | Other Events. |
On August 3, 2017 Empire State Realty Trust, Inc. (the “Company”) filed with the Securities and Exchange Commission:
| (a) | a prospectus supplement to its prospectus dated August 3, 2017, which was included in its automatic shelf registration statement on Form S-3 (File No. 333-219658) relating to the possible issuance by the Company of (i) up to 141,844,339 shares of its Class A common stock in exchange for operating partnership units (“OP Units”) of its operating partnership, Empire State Realty OP, L.P. from time to time, if and to the extent that holders of OP Units present such OP Units for redemption, and the Company exercises its right, in its sole and absolute discretion, to issue shares of its Class A common stock in exchange of some or all OP Units presented for redemption, and (ii) up to 1,080,475 shares of the Company’s Class A common stock upon conversion of an equal number of shares of its Class B common stock, from time to time, by holders of such Class B common stock pursuant to the terms of the Company’s articles of incorporation; and |
| (b) | a prospectus supplement to its prospectus dated August 3, 2017, which was included in its automatic shelf registration statement on Form S-3 (File No. 333-219658), relating to the possible resale from time to time by the stockholder named therein of an aggregate of 29,610,854 shares of the Company’s common stock, par value $0.01 per share which were issued to the stockholder in a previously reported private placement transaction on August 23, 2016. The Company will not receive any proceeds from any sale of shares by the stockholder. |
The Company registered the shares covered by the two prospectus supplements to comply with the Company’s obligations under existing registration rights agreements and such registration does not mean any or all of such shares will necessarily be issued or sold.
An opinion of the Company’s counsel, Goodwin Procter LLP, regarding the legality of the shares of common stock covered by the prospectus supplements described above are filed as Exhibit 5.1 and Exhibit 5.2, respectively, and are incorporated herein by reference.
This Current Report shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. |
Description | |
| 5.1 | Opinion of Goodwin Procter LLP regarding the legality of the shares offered | |
| 5.2 | Opinion of Goodwin Procter LLP regarding the legality of the shares offered | |
| 23.1 | Consent of Goodwin Procter LLP (included in Exhibit 5.1) | |
| 23.2 | Consent of Goodwin Procter LLP (included in Exhibit 5.2) | |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| EMPIRE STATE REALTY TRUST, INC. (Registrant) | ||||||||
| Date: August 3, 2017 | By: | /s/ David A. Karp | ||||||
| Name: David A. Karp | ||||||||
| Title: Executive Vice President and Chief Financial Officer | ||||||||
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Exhibit Index
| Exhibit No. |
Description | |
| 5.1 | Opinion of Goodwin Procter LLP regarding the legality of the shares offered | |
| 5.2 | Opinion of Goodwin Procter LLP regarding the legality of the shares offered | |
| 23.1 | Consent of Goodwin Procter LLP (included in Exhibit 5.1) | |
| 23.2 | Consent of Goodwin Procter LLP (included in Exhibit 5.2) | |
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Exhibit 5.1
[Letterhead of Goodwin Procter LLP]
August 3, 2017
Empire State Realty Trust, Inc.
111 West 33rd Street, 12th Floor
New York, New York 10120
| Re: | Securities Registered under Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-3 (File No. 333-219658) (as amended or supplemented, the “Registration Statement”) filed on August 3, 2017 with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of the offering by Empire State Realty Trust, Inc., a Maryland corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement became effective upon filing on August 3, 2017. Reference is made to our opinion letter dated August 3, 2017, and included as Exhibit 5.1 to the Registration Statement. We are delivering this supplemental opinion letter in connection with the prospectus supplement (the “Prospectus Supplement”) filed on August 3, 2017 by the Company with the Commission pursuant to Rule 424(b) under the Securities Act. The Prospectus Supplement relates to the offering of 142,924,814 shares (the “Shares”) of Class A common stock, par value $0.01 per share (the “Class A Common Stock”). The Shares may be issued from time to time by the Company to the extent that (i) the holders of 141,844,339 common units of limited partnership interest (the “OP Units”) in Empire State Realty OP, L.P., a Delaware limited partnership (the “Operating Partnership”), in accordance with the terms of the First Amended and Restated Agreement of Limited Partnership of Empire State Realty OP, L.P., dated as of October 1, 2013, as amended (the “Partnership Agreement”), tender the OP Units to the Operating Partnership for redemption and the Company exercises its contractual right to acquire such tendered OP Units in exchange for the Shares and (ii) holders of 1,080,475 shares of Class B common stock, par value $0.01 per share (the “Class B Common Stock”), of the Company redeem such Class B Common Stock for the Shares in accordance with the terms of the Company’s articles of incorporation, as amended and then in effect (the “Charter”).
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinions set forth below, on certificates of officers of the Company.
Empire State Realty Trust, Inc.
August 3, 2017
Page 2
For purposes of the opinions set forth below, we have assumed that, in the future, the Company does not issue shares of Class A Common Stock or reduce the total number of shares of Class A Common Stock that the Company is authorized to issue under its certificate of incorporation such that the number of authorized but unissued shares of Class A Common Stock under the Company’s certificate of incorporation is less than the number of unissued Shares.
The opinions set forth below are limited to the Maryland General Corporation Law (which includes reported judicial decisions interpreting the Maryland General Corporation Law).
Based on the foregoing, we are of the opinion that the Shares have been duly authorized, and when and to the extent issued (i) in exchange for the OP Units as provided in the Partnership Agreement, or (ii) in exchange for the Class B Common Stock as provided in the Charter, will be validly issued, fully paid and non-assessable.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Company’s Current Report on Form 8-K dated August 3, 2017 which is incorporated by reference into the Registration Statement and to the references to our firm under the caption “Legal Matters” in the Registration Statement and Prospectus Supplement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
| Very truly yours, |
| /s/ Goodwin Procter LLP |
| GOODWIN PROCTER LLP |
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Exhibit 5.2
[Letterhead of Goodwin Procter LLP]
August 3, 2017
Empire State Realty Trust, Inc.
111 West 33rd Street, 12th Floor
New York, New York 10120
| Re: | Securities Registered under Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-3 (File No. 333-219658) (as amended or supplemented, the “Registration Statement”) filed on August 3, 2017 with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration by Empire State Realty Trust, Inc., a Maryland corporation (the “Company”), of securities of the types specified therein. The Registration Statement became effective upon filing on August 3, 2017. Reference is made to our opinion letter dated August 3, 2017 and included as Exhibit 5.1 to the Registration Statement. We are delivering this supplemental opinion letter in connection with the prospectus supplement (the “Prospectus Supplement”) filed on August 3, 2017 by the Company with the Commission pursuant to Rule 424(b)(7) under the Securities Act. The Prospectus Supplement relates to the registration of up to 29,610,854 shares of the Company’s common stock, par value $0.01 per share (the “Shares”), to be sold from time to time by the selling stockholder listed in the Prospectus Supplement under the caption “Selling Stockholder.” We understand that the Shares are to be offered and sold in the manner described in the Prospectus Supplement.
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinions set forth below, on certificates of officers of the Company.
The opinion set forth below is limited to the Maryland General Corporation Law (which includes reported judicial decisions interpreting the Maryland General Corporation Law).
Based on the foregoing, we are of the opinion that the Shares have been duly authorized and validly issued and are fully paid and non-assessable.
Empire State Realty Trust, Inc.
August 3, 2017
Page 2
We hereby consent to the inclusion of this opinion as Exhibit 5.2 to the Company’s Current Report on Form 8-K filed with the Commission on August 3, 2017, which is incorporated by reference into the Registration Statement and Prospectus Supplement, and to the references to our firm under the caption “Legal Matters” in the Registration Statement and Prospectus Supplement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
| Very truly yours, |
| /s/ Goodwin Procter LLP |
| GOODWIN PROCTER LLP |
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