Form S-8 - Securities to be offered to employees in employee benefit plans

As filed with the Securities and Exchange Commission on May 9, 2024

Registration No. 333-

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form S-8
REGISTRATION STATEMENT

UNDER
THE SECURITIES ACT OF 1933

EMPIRE STATE REALTY TRUST, INC.

(Exact name of registrant as specified in its charter)

Maryland
(State or other jurisdiction of
incorporation or organization)

37-1645259
(I.R.S. Employer
Identification No.)

111 West 33rd Street
12th Floor
New York, New York 10120
(Address of principal executive offices)

10120
(Zip code)

EMPIRE STATE REALTY TRUST, INC. EMPIRE STATE REALTY OP, L.P.
2024 EQUITY INCENTIVE PLAN

(Full title of the plan)

Anthony E. Malkin
Chairman and Chief Executive Officer
c/o Empire State Realty Trust, Inc.
111 West 33rd Street
12th Floor
New York, New York 10120
(212) 687-8700
(Name and address, including zip code, and telephone number, including area code, of agent for service)

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer	x	Accelerated filer	¨
Non-accelerated filer	¨	Smaller reporting company	¨
		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 7(a)(2)(B) of the Securities Act. ¨

EXPLANATORY NOTE

This Registration Statement on Form S-8 is filed by Empire State Realty Trust, Inc. (the “Company” “we,” “our,” or “us”) to register 11,000,000 shares of the Company’s Class A Common Stock, par value $0.01 per share, issuable upon the exercise or settlement of equity awards granted under the Empire State Realty Trust, Inc. Empire State Realty OP, L.P. 2024 Equity Incentive Plan (the “2024 Equity Incentive Plan”).

PART I

INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

Item 1. Plan Information.*

Item 2. Registrant Information and Employee Plan Annual Information.*

* The documents containing the information specified in this Part I will be sent or given to participants under the 2024 Equity Incentive Plan as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents need not be filed with the Securities and Exchange Commission (the “SEC”) either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents previously filed by the Company with the SEC are incorporated by reference in this registration statement:

The Company’s Annual Report on Form 10-K for the year ended December 31, 2023;

The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2024;

The Company’s Current Reports on Form 8-K filed with the SEC on February 20, 2024 (Item 5.02 only), March 13, 2024 and April 11, 2024;

The Company’s Proxy Statement filed with the SEC on March 28, 2024; and

The description of the Class A Common Stock contained in the Company’s Registration Statement on Form 8-A filed with the SEC on September 30, 2013.

All documents filed by us under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment to this registration statement that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall also be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of filing of those documents; provided, however, that we are not incorporating any information furnished under either Item 2.02 or Item 7.01 of any Current Report on Form 8-K.

Any statement contained in a document incorporated or deemed to be incorporated by reference in this registration statement shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained in this registration statement, or in any other subsequently filed document that also is or is deemed to be incorporated by reference in this registration statement, modifies or supersedes such prior statement. Any statement contained in this registration statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document that is or is deemed to be incorporated by reference in this registration statement modifies or supersedes such prior statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.

Item 4. Description of Securities.

Not applicable.

Item 5. Interests of Named Experts and Counsel.

Not applicable.

Item 6. Indemnification of Directors and Officers.

Maryland law permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty established by a final judgment as being material to the cause of action.

Our charter contains such a provision and eliminates the liability of our directors and officers to the maximum extent permitted by Maryland law.

Maryland law requires a Maryland corporation (unless its charter provides otherwise, which our charter does not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made or threatened to be made a party by reason of his or her service in that capacity against reasonable expenses actually incurred in the proceeding in which the director or officer was successful. Maryland law permits a Maryland corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made or threatened to be made a party by reason of their service in those or other capacities unless it is established that:

the act or omission of the director or officer was material to the matter giving rise to the proceeding and (i) was committed in bad faith or (ii) was the result of active and deliberate dishonesty;

the director or officer actually received an improper personal benefit in money, property or services; or

in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful.

Under Maryland law, a Maryland corporation also may not indemnify a director or officer in a suit by or on behalf of the corporation in which the director or officer was adjudged liable to the corporation or for a judgment of liability on the basis that a personal benefit was improperly received. A court may order indemnification in such situation if it determines that the director or officer is fairly and reasonably entitled to indemnification, even though the director or officer did not meet the prescribed standard of conduct; however, indemnification for an adverse judgment in a suit by the corporation or on its behalf, or for a judgment of liability on the basis that personal benefit was improperly received, is limited to expenses.

In addition, Maryland law permits a Maryland corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of:

a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation; and

a written undertaking by the director or officer or on the director’s or officer’s behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the director or officer did not meet the standard of conduct.

Our charter and bylaws obligate us, to the maximum extent permitted by Maryland law in effect from time to time, to indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to:

any present or former director or officer who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity; or

any individual who, while a director or officer of our Company and at our request, serves or has served another corporation, real estate investment trust, partnership, limited liability company, joint venture, trust or employee benefit plan or any other enterprise as a director, officer, partner, member, manager or trustee of such corporation, real estate investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity.

Our charter and bylaws also permit us, with the approval of our board of directors, to indemnify and advance expenses to (a) any present or former member, manager, shareholder, director, limited partner, general partner, officer or controlling person of (i) Malkin Holdings LLC (“Malkin Holdings”), (ii) an entity that owned an interest in one of the 18 real properties or two acres of land that were contributed to the Company, Empire State Realty OP, L.P. or their subsidiaries (each such entity, a “Contributing Entity”) in the Company’s initial public offering or (iii) any direct or indirect partner or member, or any employee benefit plan or other enterprise thereof (provided, that, in the case such direct or indirect partner or member owned direct or indirect interests in any properties not contributed to the Company, Empire State Realty OP, L.P. or their subsidiaries in the Company’s initial public offering, only to the extent such service relates to the business of Malkin Holdings or any Contributing Entity) or (b) any agent for participants in any Contributing Entity or any direct or indirect partner or member thereof (provided, that, in the case such direct or indirect partner or member owned direct or indirect interests in any properties not contributed to the Company or Empire State Realty OP, L.P., only to the extent such service relates to the business of Malkin Holdings or any Contributing Entity). In addition, the 2024 Equity Incentive Plan requires us to indemnify our directors and members of the compensation committee of our board of directors in connection with the performance of their duties, responsibilities and obligations under the 2024 Equity Incentive Plan, to the maximum extent permitted by Maryland law.

We have entered into indemnification agreements with each of our directors, executive officers and chairman emeritus, and certain other parties providing for the indemnification by us for certain liabilities and expenses incurred as a result of actions brought, or threatened to be brought, against (i) our directors, executive officers and chairman emeritus and (ii) our executive officers, our chairman emeritus and certain other parties who are former members, managers, shareholders, directors, limited partners, general partners, officers or controlling persons of our predecessor in their capacities as such.

In addition, the partnership agreement of our operating partnership, Empire State Realty OP, L.P., provides that we, as general partner, and our officers and directors are indemnified to the maximum extent permitted by law.

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.

Exhibit No.	Description
3.1	Articles of Amendment and Restatement of Empire State Realty Trust, Inc., incorporated by reference to Exhibit 3.1 to Amendment No. 8 to the Company’s Form S-11 (Registration No. 333-179485), filed with the SEC on September 27, 2013
3.2	Fourth Amended and Restated Bylaws of Empire State Realty Trust, Inc., incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on August 11, 2023
5.1*	Opinion of Venable LLP (including consent of such firm)
10.1	Empire State Realty Trust, Inc. Empire State Realty OP, L.P. 2024 Equity Incentive Plan, incorporated by reference to Exhibit A to the Company’s Definitive Proxy Statement filed with the SEC on March 28, 2024
23.1*	Consent of Venable LLP (included in Exhibit 5.1)
23.2*	Consent of Ernst & Young LLP
24*	Power of Attorney
99.1*	Form of Restricted Stock Agreement (Time-Based)
99.2*	Form of LTIP Agreement (Director, Time-Based)
99.3*	Form of LTIP Agreement (Executive Officer or Director, Immediate Vest)
99.4*	Form of LTIP Agreement (Executive Officer, Performance-Based)
99.5*	Form of LTIP Agreement (Executive Officer, Time-Based)
107*	Filing Fee Table

* Filed herewith.

Item 9. Undertakings.

(a)

The undersigned registrant hereby undertakes:

(i)

To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

(1)

To include any prospectus required by Section 10(a)(3) of the Securities Act;

(2)

To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

(3)

To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.

(ii)

That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(iii)

To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(b)

The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c)

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on May 9, 2024.

EMPIRE STATE REALTY TRUST, INC.

By:	/s/ Anthony E. Malkin
	Name:	Anthony E. Malkin
	Title:	Chairman and Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Anthony E. Malkin and Christina Chiu, and each of them, with full power to act without the other, such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign this registration statement, and any and all pre-effective and post-effective amendments thereto as well as any related registration statements (or amendment thereto) filed pursuant to Rule 462(b) promulgated under the Securities Act and to file the same, with exhibits and schedules thereto, and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the date indicated.

Signature		Title	Date

By:	/s/ Anthony E. Malkin	Chairman of the Board of Directors and Chief Executive Officer	May 9, 2024
	Anthony E. Malkin	(Principal Executive Officer)

By:	/s/ Christina Chiu	President	May 9, 2024
	Christina Chiu

By:	/s/ Stephen V. Horn	Executive Vice President, Chief Financial Officer and Chief Accounting Officer	May 9, 2024
	Stephen V. Horn	(Principal Financial and Accounting Officer)

By:	/s/ Thomas J. DeRosa	Director	May 9, 2024
	Thomas J. DeRosa

By:	/s/ Steven J. Gilbert	Lead Independent Director	May 9, 2024
	Steven J. Gilbert

By:	/s/ S. Michael Giliberto	Director	May 9, 2024
	S. Michael Giliberto

By:	/s/ Patricia S. Han	Director	May 9, 2024
	Patricia S. Han

By:	/s/ Grant H. Hill	Director	May 9, 2024
	Grant H. Hill

By:	/s/ R. Paige Hood	Director	May 9, 2024
	R. Paige Hood

By:	/s/ James D. Robinson IV	Director	May 9, 2024
	James D. Robinson IV

By:	/s/ Christina Van Tassell	Director	May 9, 2024
	Christina Van Tassell

By:	/s/ Hannah Yang	Director	May 9, 2024
	Hannah Yang

Exhibit 5.1

750 E. PRATT STREET SUITE 900 BALTIMORE, MD 21202

T 410.244.7400 F 410.244.7742 www.Venable.com

May 9, 2024

Empire State Realty Trust, Inc.

111 West 33rd Street

12th Floor

New York, New York 10120

Re: Registration Statement on Form S-8

Ladies and Gentlemen:

We have served as Maryland counsel to Empire State Realty Trust, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the registration of up to 11,000,000 shares of Class A Common Stock, $0.01 par value per share (the “Class A Common Stock”), of the Company (the “Shares”) that may be issued from time to time pursuant to the Empire State Realty Trust, Inc. Empire State Realty OP, L.P. 2024 Equity Incentive Plan (the “Plan”). The Shares are covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”).

In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (herein collectively referred to as the “Documents”):

1. The Registration Statement;

2. The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);

3. The Fourth Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;

4. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;

5. Resolutions adopted by the Board of Directors of the Company, or a duly authorized committee thereof, relating to, among other matters, the approval of the Plan and the registration and issuance of the Shares (the “Resolutions”), certified as of the date hereof by an officer of the Company;

6. The Plan;

Empire State Realty Trust, Inc.

May 9, 2024

Page 2

7. A certificate executed by an officer of the Company, dated as of the date hereof; and

8. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.

In expressing the opinion set forth below, we have assumed the following:

1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.

2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.

3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.

4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.

5. The Shares will not be issued or transferred in violation of any restriction or limitation on transfer and ownership of shares of stock of the Company contained in Article VII of the Charter or in violation of any restriction or limitation in the Plan.

6. Upon the issuance of any of the Shares, the total number of shares of Class A Common Stock issued and outstanding will not exceed the total number of shares of Class A Common Stock that the Company is then authorized to issue under the Charter.

7. Each option, restricted stock unit, right or other security exercisable or exchangeable for a Share pursuant to the Plan (each, an “Option”) will be duly authorized and validly granted in accordance with the Plan and exercised or exchanged in accordance with the terms of the Plan, including any stock option agreement, restricted stock agreement or other form of award agreement entered into in connection therewith, at the time of any exercise or exchange of such Option.

Empire State Realty Trust, Inc.

May 9, 2024

Page 3

Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:

1. The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.

2. The issuance of the Shares has been duly authorized and, when and to the extent issued and delivered against payment therefor in accordance with the Registration Statement, the Resolutions, the Plan and any stock option agreement, restricted stock agreement or other form of award agreement utilized under the Plan, the Shares will be validly issued, fully paid and nonassessable.

The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to the applicability or effect of federal or state securities laws, including the securities laws of the State of Maryland, federal or state laws regarding fraudulent transfers or the laws, codes or regulations of any municipality or other local jurisdiction. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.

The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.

This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.

Very truly yours,

/s/ Venable LLP

Exhibit 23.2

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Empire State Realty Trust, Inc. Empire State Realty OP, L.P. 2024 Equity Incentive Plan of Empire State Realty Trust, Inc. of our reports dated February 28, 2024, with respect to the consolidated financial statements of Empire State Realty Trust, Inc. and the effectiveness of internal control over financial reporting of Empire State Realty Trust, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

May 9, 2024

New York, NY

Exhibit 99.1

TIME-BASED VESTING RESTRICTED STOCK AGREEMENT
UNDER THE EMPIRE STATE REALTY TRUST, INC.
EMPIRE STATE REALTY OP, L.P.
2024 EQUITY INCENTIVE PLAN

This RESTRICTED STOCK AGREEMENT (this “Agreement”), is entered into on (the “Grant Date”), by and between, Empire State Realty Trust, Inc., a Maryland corporation (the “Company”), and (“Grantee”). Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings set forth in the Empire State Realty Trust, Inc. Empire State Realty OP, L.P. 2024 Equity Incentive Plan (the “Plan”).

1. Number of Shares; Restrictions. The Company hereby grants Grantee an Award of shares of Restricted Stock (the “Restricted Shares”) pursuant to the terms of this Agreement and the provisions of the Plan. The Restricted Shares may not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of and shall be subject to a risk of forfeiture until the lapse of the restrictions as set forth in this Agreement.

2. Lapse of Restrictions.

(a) The restrictions set forth herein with respect to the Restricted Shares shall lapse and the Restricted Shares shall vest as to twenty-five percent (25%) of the Restricted Shares on the one (1) year anniversary of January 1, 20__, and the remainder shall vest in substantially equal annual installments, rounded down to the nearest whole Restricted Share, on each subsequent anniversary for a period of three (3) years thereafter; provided, that, with respect to the last such annual installment, the number of Restricted Shares that vest in the installment shall be such that Grantee will be fully vested in the total number of Restricted Shares granted hereunder as of the applicable annual anniversary. Notwithstanding the foregoing, except as provided in Section 2(b) or Section 3 below or in Section 12(c) of the Plan, the Restricted Shares shall not vest unless Grantee continues to be employed by the Company or any of its Affiliates through the applicable vesting date.

(b) In the event of a Corporate Event, this Award shall be treated as set forth in Section 12 of the Plan; provided, however, if the Restricted Shares do not remain outstanding or are not replaced with awards of the Company’s successor in a Change in Control, all outstanding Restricted Shares shall become fully vested upon the consummation of the Change in Control.

3. Termination of Employment.

(a) In the event of Grantee’s Termination for any reason, except as provided in (b) below, all vesting with respect to the Restricted Shares shall immediately cease, and all Restricted Shares that have not vested at that time will be forfeited to the Company without payment of any consideration by the Company or any of its Affiliates, and neither Grantee nor any of his or her successors, heirs, assigns, or personal representatives will thereafter have any further rights or interests in such Restricted Shares.

(b) In the event Grantee’s Termination is a result of (i) death, (ii) Disability, (iii) a termination without Cause by the Company or its Affiliates, (iv) a voluntary termination by Grantee that follows the Grantee’s Retirement Eligibility Date, or (v) a termination by Grantee with Good Reason (as defined in Grantee’s Participant Agreement); any restrictions on the Restricted Shares shall lapse and the Restricted Shares, unless earlier terminated or forfeited and to the extent not otherwise vested, shall automatically become fully vested as of such date of Termination.

(c) Notwithstanding any other provision hereof, if Grantee is a party to an effective Participant Agreement, then the terms of such Participant Agreement shall supersede any contrary provision in this Agreement and the applicable period of forfeiture shall also end if and as may otherwise be required by such Participant Agreement; and nothing herein shall limit any rights Grantee may otherwise have under such Participant Agreement.

4. Rights of Stockholder. From and after the Grant Date and for so long as the Restricted Shares are held by or for the benefit of Grantee, Grantee shall have all the rights of a stockholder of the Company with respect to the Restricted Shares, including but not limited to the right to (i) receive any and all dividends or other distributions paid with respect to the Restricted Shares of which Grantee is the record owner on the record date for such dividend or other distribution, and (ii) vote any Restricted Shares of which Grantee is the record owner on the record date for such vote.

5. Certificates. Any certificates issued in respect of the Restricted Shares shall be held by the Company, and any such certificate shall contain a legend substantially in the following form:

THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS (INCLUDING FORFEITURE) OF THE EMPIRE STATE REALTY TRUST, INC. EMPIRE STATE REALTY OP, L.P. 2024 EQUITY INCENTIVE PLAN AND A RESTRICTED STOCK AGREEMENT ENTERED INTO BETWEEN THE REGISTERED OWNER AND EMPIRE STATE REALTY TRUST, INC. COPIES OF SUCH PLAN AND AGREEMENT ARE ON FILE IN THE OFFICES OF EMPIRE STATE REALTY TRUST, INC.

As soon as practicable following the vesting of any Restricted Shares granted herein, if applicable, the Company shall cause a certificate or certificates covering such vested Restricted Shares, without the aforesaid legend, to be issued and delivered to Grantee. If any Restricted Shares are held in book-entry form, the Company may take such steps as it deems necessary or appropriate to record and manifest the restrictions applicable to such Restricted Shares. Notwithstanding the foregoing, any certificates representing vested Restricted Shares delivered to Grantee shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission or any stock exchange upon which such shares are listed, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions as the Committee deems appropriate.

6. Certain Tax Matters. Grantee expressly agrees and acknowledges the following:

(a) Grantee has been advised to confer promptly with a professional tax advisor to consider whether Grantee should make a so-called “83(b) election” with respect to the Restricted Shares. Any such election, to be effective, must be made in accordance with the applicable regulations and filed with the Internal Revenue Service within thirty (30) days following the date this Award is granted, and Grantee must provide the Company with a copy of the 83(b) election. The Company has made no recommendation to Grantee with respect to the advisability of making an election.

(b) The award or vesting of the Restricted Shares acquired hereunder, and the payment of dividends with respect to such Restricted Shares, may give rise to “wages” subject to withholding. Grantee expressly acknowledges and agrees that his or her rights hereunder are subject to his or her promptly satisfying all taxes required to be withheld in connection with this Award. Grantee may elect to have such tax withholding satisfied, in whole or in part, by (i) authorizing the Company to withhold a number of shares of Stock to be issued pursuant to this Award with a Fair Market Value equal to the amount of the required withholding tax, (ii) transferring to the Company previously owned shares of Stock with a Fair Market Value equal to the amount of the required withholding tax, or (iii) in the event Grantee is an employee of the Company at the time such withholding tax is effected, by withholding from the cash compensation payable to Grantee as of such date, equal to the amount of required withholding tax.

7. Miscellaneous.

(a) Incorporation of the Plan. This Agreement is made under and subject to and governed by all of the terms and conditions of the Plan. In the event of any discrepancy or inconsistency between this Agreement and the Plan, the terms and conditions of the Plan shall control. By signing this Agreement, Grantee confirms that he or she has received a copy of the Plan and has had an opportunity to review the contents thereof.

(b) Clawback. This Award is subject to any incentive compensation clawback or recoupment policy currently in effect or as may be adopted by the Board, and in each case, as may be amended from time to time.

(c) Waiver. The failure of Grantee or the Company to insist upon strict compliance with any provision of this Agreement or the Plan, or to assert any right Grantee or the Company, respectively, may have under this Agreement or the Plan, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement or the Plan.

(d) No Right to Continued Employment. Neither the Plan nor this Agreement will give Grantee any right to continue to be in the employ of the Company or any of its Affiliates, affect the right of the Company or any of its Affiliates to discharge or discipline such Grantee at any time, or affect any right of such Grantee to terminate his or her employment at any time.

(e) Assignment and Transfer. Except as expressly permitted under this Agreement or by the Committee pursuant to the Plan, the rights and interests of Grantee under this Agreement may not be sold, assigned, encumbered, pledged, or otherwise transferred except in the event of the death of Grantee, by will or by the laws of descent and distribution. In the event of any attempt by Grantee in breach of the foregoing sentence to sell, assign, encumber, pledge or otherwise transfer its rights and interests hereunder, or in the event of the levy or any attachment, execution or similar process upon the rights or interests hereby conferred, the Company may require Grantee to forfeit the Restricted Shares by notice to Grantee, and the Restricted Shares and all rights hereunder shall thereupon become null and void. The rights and protections of the Company hereunder shall extend to any successors or assigns of the Company.

(f) Headings. Section, paragraph and other headings and captions are provided solely as a convenience to facilitate reference. Such headings and captions shall not be deemed in any way material or relevant to the construction, meaning or interpretation of this Agreement or any term or provision hereof.

(g) Severability. In the event that one or more provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein.

(h) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. Facsimile or electronic submission of any signed original document or retransmission of any signed facsimile or other electronic transmission will be deemed the same as delivery of an original.

(i) Notices. Notices hereunder shall be mailed or delivered to the Company at its principal place of business and shall be mailed or delivered to Grantee at the address on file with the Company or, in either case, at such other address as one party may subsequently furnish to the other party in writing.

(j) Consent to Electronic Delivery. Grantee agrees that the Company may deliver by email all documents relating to the Plan or the Restricted Shares (including without limitation, a copy of the Plan) and all other documents that the Company is required to deliver to its security holders (including, without limitation, disclosures that may be required by the Securities and Exchange Commission). Grantee also agrees that the Company may deliver these documents by posting them on a website maintained by the Company or by a third-party under contract with the Company. If the Company posts these documents on a website, it shall notify Grantee by email.

(k) Amendment. Grantee acknowledges that the Plan may be amended or discontinued in accordance with Section 19 or Section 20 thereof and that this Agreement may be amended or canceled by the Board or the Committee, for the purpose of satisfying changes in law or for any other lawful purpose, provided that no such action shall materially impair Grantee’s rights under this Agreement without Grantee’s written consent.

(l) Governing Law. This Agreement and all claims or disputes arising out of or based upon this Agreement or relating to the subject matter hereof shall be governed by, and construed in accordance with, the laws of the State of Maryland, applied without regard to conflict of law principles or rules that would cause the application of the domestic substantive laws of any other jurisdiction.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

	EMPIRE STATE REALTY TRUST, INC.

	By:
		Name:
		Title:

The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by Grantee.

Dated:

Exhibit 99.2

LTIP UNIT VESTING AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
UNDER THE
EMPIRE STATE REALTY TRUST, INC.
EMPIRE STATE REALTY OP, L.P.
2024 EQUITY INCENTIVE PLAN

Grantee: _____________________

No. of LTIP Units: ____________________

Grant Date: ___

Pursuant to the Empire State Realty Trust, Inc. Empire State Realty OP, L.P. 2024 Equity Incentive Plan (the “Plan”) and the Amended and Restated Agreement of Limited Partnership, dated as of October 1, 2013, as amended (the “Partnership Agreement”), of Empire State Realty OP, L.P., a Delaware limited partnership (the “Partnership”), Empire State Realty Trust, Inc., a Maryland corporation and the general partner of the Partnership (the “Company”), hereby grants to Grantee named above an other equity-based award (pursuant to Section 11 of the Plan, and referred to herein as an “Award”) in the form of, and by causing the Partnership to issue to Grantee named above, LTIP Units (as defined in the Partnership Agreement) having the rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption and conversion set forth herein and in the Partnership Agreement. If this LTIP Unit Vesting Agreement (this “Agreement”) is accepted, Grantee shall receive the number of LTIP Units specified above as of the Grant Date, subject to the restrictions and conditions set forth herein, in the Plan and in the Partnership Agreement. All capitalized terms not otherwise defined herein shall have the same meanings as set forth in the Plan.

1. Acceptance of Agreement. Grantee shall have no rights with respect to this Agreement unless Grantee has accepted this Agreement by (i) signing and delivering to the Partnership a copy of this Agreement and (ii) unless Grantee is already a Limited Partner (as defined in the Partnership Agreement), signing, as a Limited Partner, and delivering to the Partnership a counterpart signature page to the Partnership Agreement (attached hereto as Annex A). If this Agreement is accepted by Grantee, the Partnership Agreement shall be amended to reflect the issuance to Grantee of the LTIP Units so accepted. Thereupon, Grantee shall have all the rights of a Limited Partner of the Partnership with respect to the number of LTIP Units then issued to Grantee, as set forth in the Partnership Agreement, subject, however, to the restrictions and conditions specified in Section 2 below.

2. Restrictions and Conditions.

(a) The records of the Partnership evidencing the LTIP Units granted herein shall bear an appropriate legend, as determined by the Partnership in its sole discretion, to the effect that such LTIP Units are subject to restrictions as set forth herein, in the Plan and in the Partnership Agreement.

(b) LTIP Units granted herein may not be sold, assigned, transferred, pledged hypothecated or otherwise disposed of and shall be subject to a risk of forfeiture until the lapse of restrictions as set forth in this Agreement.

3. Lapse of Restrictions.

(a) The restrictions and conditions in Section 2 of this Agreement shall lapse and the LTIP Units granted herein shall vest as to [___________]1 of the LTIP Units on the one (1) year anniversary of the Grant Date, and the remainder shall vest in substantially equal annual installments, rounded down to the nearest whole LTIP Unit, on each subsequent anniversary for a period of [_______]¹thereafter; provided, that, with respect to the last such annual installment, the number of LTIP Units that vest in the installment shall be such that Grantee will be fully vested in the total number of LTIP Units listed above as of the applicable annual anniversary. Notwithstanding the foregoing, except as provided in Section 3(b) or in Section 4 below or Section 12(c) of the Plan, an LTIP Unit shall not vest on any vesting date unless Grantee continues to serve as a member of the Board or is employed by the Company, the Partnership or any of their Affiliates through the applicable vesting date.

(b) In the event of a Corporate Event, this Award shall be treated as set forth in Section 12 of the Plan; provided, however, if the LTIP Units do not remain outstanding or are not replaced with awards of the Company’s successor in a Change in Control, all outstanding LTIP Units shall become fully vested upon the consummation of the Change in Control.

4. Termination of Service.

(a) In the event of Grantee’s Termination for any reason, except as provided in (b) below, all vesting with respect to the LTIP Units shall immediately cease, and all LTIP Units that have not vested at that time will be forfeited to the Partnership without payment of any consideration by the Partnership or any of its Affiliates, and neither Grantee nor any of his or her successors, heirs, assigns, or personal representatives will thereafter have any further rights or interests in such LTIP Units.

(b) In the event Grantee’s Termination is a result of (i) death, (ii) Disability, (iii) a voluntary termination by Grantee that follows the Grantee’s reaching the age of 65 (without regard to years of service), (iv) a voluntary termination by the Grantee in accord with any Company policy for a mandatory term limit or retirement age, (v) a voluntary termination by Grantee, while in good standing as a director, at the request of the Board in connection with ordinary refreshment of Board composition or any Change in Control at the Company, (vi) a voluntary termination by Grantee due to Grantee’s position of employment in public or government service or (vii) any termination by the Company without Cause, any restrictions and conditions on all LTIP Units subject to this Agreement shall lapse and the LTIP Units, unless earlier terminated or forfeited and to the extent not otherwise vested, shall automatically become fully vested as of such date of Termination.

¹ Number of years and vesting dates to be inserted, usually in range of 3-4 years.

5. Distributions. Distributions on the LTIP Units shall be paid to Grantee in accordance with the terms of the Partnership Agreement.

6. Covenants, Representation and Warranties. Grantee hereby covenants as follows:

(a) So long as Grantee holds any LTIP Units, Grantee shall disclose to the Partnership in writing such information as may be reasonably requested with respect to ownership of LTIP Units as the Partnership may deem reasonably necessary to ascertain and to establish compliance with provisions of the Code as applicable to the Partnership or to comply with the requirements of any other appropriate tax authority.

(b) Grantee hereby agrees to make an election under Section 83(b) of the Code with respect to the LTIP Units awarded hereunder, and has delivered with this Agreement a completed, executed copy of the election form attached hereto as Annex B. Grantee agrees to file the election within thirty (30) days after the Grant Date with the Internal Revenue Service, and to promptly provide a copy of such filed election to the Company.

(c) Grantee hereby agrees not to dispose of the LTIP Units subject to this Award within two years after the Grant Date. The Partnership and Grantee hereby agree to treat Grantee as the owner of the LTIP Units from the Grant Date. Grantee hereby agrees to take into account the distributive share of Partnership income, gain, loss, deduction, and credit associated with the LTIP Units in computing Grantee’s income tax liability for the entire period during which Grantee has the LTIP Units.

(d) Grantee hereby recognizes that the Internal Revenue Service has proposed regulations under Sections 83 and 704 of the Code that may affect the proper treatment of the LTIP Units for federal income tax purposes. In the event that those proposed regulations are finalized, Grantee hereby agrees to cooperate with the Partnership in amending this Agreement and the Partnership Agreement, and to take such other action as may be required, to conform to such regulations.

(e) Grantee has received and read a copy of the Partnership Agreement and the Plan and has had his or her tax advisors advise him or her on the application of U.S. federal income tax laws, and the tax laws of any state, local or other taxing jurisdiction to which Grantee is or by reason of the Award may become subject to.

7. Clawback. This Award is subject to any incentive compensation clawback or recoupment policy currently in effect or as may be adopted by the Board, and in each case, as may be amended from time to time.

8. Assignment and Transfer. Except as expressly permitted under this Agreement or by the Committee pursuant to the Plan, the rights and interests of Grantee under this Agreement may not be sold, assigned, encumbered, pledged, or otherwise transferred except in the event of the death of Grantee, by will or by the laws of descent and distribution. In the event of any attempt by Grantee in breach of the foregoing sentence to sell, assign, encumber, pledge or otherwise transfer its rights and interests hereunder, or in the event of the levy or any attachment, execution or similar process upon the rights or interests hereby conferred, the Company or the Partnership may require Grantee to forfeit the LTIP Units by notice to Grantee, and the LTIP Units and all rights hereunder shall thereupon become null and void. The rights and protections of the Company and the Partnership hereunder shall extend to any successors or assigns of the Company and the Partnership.

9. Incorporation of the Plan. This Agreement is made under and subject to and governed by all of the terms and conditions of the Plan. In the event of any discrepancy or inconsistency between this Agreement and the Plan, the terms and conditions of the Plan shall control. By signing this Agreement, Grantee confirms that he or she has received a copy of the Plan and has had an opportunity to review the contents thereof. Any shares of Stock issued in exchange for partnership units into which LTIP Units may have been converted pursuant to the Partnership Agreement will be issued under the Plan.

10. Amendment. Grantee acknowledges that the Plan may be amended or discontinued in accordance with Section 19 or Section 20 thereof and that this Agreement may be amended or canceled by the Board or the Committee, on behalf of the Partnership, for the purpose of satisfying changes in law or for any other lawful purpose, provided that no such action shall materially impair Grantee’s rights under this Agreement without Grantee’s written consent.

11. No Right to Continued Service or Employment. Neither the Plan nor this Agreement will give Grantee any right to continue to be in the employ or service of the Company, the Partnership or any of their Affiliates, affect the right of the Company, the Partnership or any of their Affiliates to discharge or discipline such Grantee at any time, or affect any right of such Grantee to terminate his or her service or employment at any time.

12. Waiver. The failure of Grantee or the Company to insist upon strict compliance with any provision of this Agreement or the Plan, or to assert any right Grantee or the Company, respectively, may have under this Agreement or the Plan, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement or the Plan.

13. Notices. Notices hereunder shall be mailed or delivered to the Partnership at its principal place of business and shall be mailed or delivered to Grantee at the address on file with the Partnership or, in either case, at such other address as one party may subsequently furnish to the other party in writing.

14. Consent to Electronic Delivery. Grantee agrees that the Company or the Partnership may deliver by email all documents relating to the Plan or the LTIP Units (including without limitation, a copy of the Plan) and all other documents that the Company or Partnership is required to deliver to its security holders (including, without limitation, disclosures that may be required by the Securities and Exchange Commission). Grantee also agrees that the Company or the Partnership may deliver these documents by posting them on a website maintained by the Company or by a third-party under contract with the Company. If the Company posts these documents on a website, it shall notify Grantee by email.

15. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. Facsimile or electronic submission of any signed original document or retransmission of any signed facsimile or other electronic transmission will be deemed the same as delivery of an original.

16. Severability. In the event that one or more provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein.

17. Headings. Section, paragraph and other headings and captions are provided solely as a convenience to facilitate reference. Such headings and captions shall not be deemed in any way material or relevant to the construction, meaning or interpretation of this Agreement or any term or provision hereof.

18. Governing Law. This Agreement and all claims or disputes arising out of or based upon this Agreement or relating to the subject matter hereof shall be governed by, and construed in accordance with, the laws of the State of Maryland, applied without regard to conflict of law principles or rules that would cause the application of the domestic substantive laws of any other jurisdiction.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

	EMPIRE STATE REALTY TRUST, INC.

	By:
		Name:
		Title:

	EMPIRE STATE REALTY OP, L.P.

	By:	EMPIRE STATE REALTY TRUST,
		INC., its general partner

	By:
		Name:
		Title:

The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by Grantee.

Dated: _____________


	[NAME]

ANNEX A

FORM OF LIMITED PARTNER SIGNATURE PAGE

Grantee, desiring to become one of the within named Limited Partners of Empire State Realty OP, L.P., hereby becomes a party to the Amended and Restated Agreement of Limited Partnership of Empire State Realty OP, L.P., dated as of October 1, 2013, as amended through the date hereof (the “Partnership Agreement”). Grantee agrees that this signature page may be attached to any counterpart of the Partnership Agreement.


	Signature Line for Limited Partner:
	NAME

	Date:
	Address of Limited Partner:

A-1

ANNEX B

ELECTION TO INCLUDE IN GROSS INCOME IN YEAR OF
TRANSFER OF PROPERTY PURSUANT TO SECTION 83(B)
OF THE INTERNAL REVENUE CODE

The undersigned hereby makes an election pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, to include in gross income in 20__ as compensation for services rendered, the fair market value of the property received in connection with his/her services in excess of the amount paid for the property and supplies the following information in accordance with the regulations promulgated thereunder:

1. The name, address and taxpayer identification number of the undersigned are:

Name: ___________________ (the “Taxpayer”)
Address: ________________________________
Social Security No. /Taxpayer Identification No.: _________

2. Description of property with respect to which the election is being made:

The election is being made with respect to _________ LTIP Units in Empire State Realty O.P. L.P. (the “Partnership”).

3. The date on which the LTIP Units were transferred is ___________.

4. The taxable year to which this election relates is calendar year 20__.

5. Nature of restrictions to which the LTIP Units are subject:

(a) The Taxpayer may not transfer in any manner any unvested portion of the LTIP Units without the consent of the Partnership.

(b) The LTIP Units are subject to service-based vesting conditions, such that ______________ of the LTIP Units will vest on each of the first__________ anniversaries of the grant date, provided the undersigned continues to serve as a member of the Company’s board of directors or is employed with the Partnership, its general partner, Empire State Realty Trust, Inc. or any of their respective affiliates through each such date, subject to accelerated vesting in certain circumstances.

6. The fair market value at time of transfer (determined without regard to any restrictions other than restrictions which by their terms will never lapse) of the LTIP Units with respect to which this election is being made was $0 per LTIP Unit.

7. The amount paid by the Taxpayer for the LTIP Units was $0 per LTIP Unit.

8. The amount to be included in gross income is $0.

9. A copy of this statement has been furnished to the Partnership and to its general partner, Empire State Realty Trust, Inc.

B-1

The Taxpayer will file this election with the Internal Revenue Service office with which the Taxpayer files his or her annual income tax return no later than 30 days after the date of transfer of the property. The Taxpayer is the person performing the services in connection with which the property was transferred.

Dated: ___________________

_________________________

Taxpayer’s Signature

B-2

Exhibit 99.3

LTIP UNIT VESTING AGREEMENT
[FOR NON-EMPLOYEE DIRECTORS] [FOR EMPLOYEES] UNDER THE
EMPIRE STATE REALTY TRUST, INC.
EMPIRE STATE REALTY OP, L.P.
2024 EQUITY INCENTIVE PLAN

Grantee: _____________________

No. of LTIP Units: ____________________

Grant Date: ____________________

Pursuant to the Empire State Realty Trust, Inc. Empire State Realty OP, L.P. 2024 Equity Incentive Plan (the “Plan”) and the Amended and Restated Agreement of Limited Partnership, dated as of October 1, 2013, as amended (the “Partnership Agreement”), of Empire State Realty OP, L.P., a Delaware limited partnership (the “Partnership”), Empire State Realty Trust, Inc., a Maryland corporation and the general partner of the Partnership (the “Company”), hereby grants to Grantee named above an other equity-based award (pursuant to Section 11 of the Plan, and referred to herein as an “Award”) in the form of, and by causing the Partnership to issue to Grantee named above, LTIP Units (as defined in the Partnership Agreement) having the rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption and conversion set forth herein and in the Partnership Agreement. If this LTIP Unit Vesting Agreement (this “Agreement”) is accepted, Grantee shall receive the number of LTIP Units specified above as of the Grant Date, fully vested, subject to the restrictions and conditions set forth herein, in the Plan and in the Partnership Agreement. All capitalized terms not otherwise defined herein shall have the same meanings as set forth in the Plan.

2. Restrictions and Conditions.

(b) No LTIP Unit granted hereunder shall be sold, assigned, transferred, pledged, hypothecated, given away or in any other manner disposed of, or encumbered, whether voluntarily or by operation of law until the second anniversary of the Grant Date; provided, that this sentence shall not prevent conversion of an LTIP Unit to a Series PR OP Unit (as defined in the Partnership Agreement) and/or Class A REIT Share (as defined in the Partnership Agreement) if such conversion is otherwise permitted under this Agreement and the Partnership Agreement.

(c) In the event of a Corporate Event, this Award shall be treated as set forth in Section 12 of the Plan; provided, however, if the LTIP Units do not remain outstanding or are not replaced with awards of the Company’s successor in a Change in Control, all outstanding LTIP Units shall become fully vested upon the consummation of the Change in Control.

3. Distributions. Distributions on the LTIP Units shall be paid to Grantee in accordance with the terms of the Partnership Agreement.

4. Covenants, Representation and Warranties. Grantee hereby covenants as follows:

5. Clawback. This Award is subject to any incentive compensation clawback or recoupment policy currently in effect or as may be adopted by the Board, and in each case, as may be amended from time to time.

6. Assignment and Transfer. Except as expressly permitted under this Agreement or by the Committee pursuant to the Plan, the rights and interests of Grantee under this Agreement may not be sold, assigned, encumbered, pledged, or otherwise transferred except in the event of the death of Grantee, by will or by the laws of descent and distribution. In the event of any attempt by Grantee in breach of the foregoing sentence to sell, assign, encumber, pledge or otherwise transfer its rights and interests hereunder, or in the event of the levy or any attachment, execution or similar process upon the rights or interests hereby conferred, the Company or the Partnership may require Grantee to forfeit the LTIP Units by notice to Grantee, and the LTIP Units and all rights hereunder shall thereupon become null and void. The rights and protections of the Company and the Partnership hereunder shall extend to any successors or assigns of the Company and the Partnership.

7. Incorporation of the Plan. This Agreement is made under and subject to and governed by all of the terms and conditions of the Plan. In the event of any discrepancy or inconsistency between this Agreement and the Plan, the terms and conditions of the Plan shall control. By signing this Agreement, Grantee confirms that he or she has received a copy of the Plan and has had an opportunity to review the contents thereof. Any shares of Stock issued in exchange for partnership units into which LTIP Units may have been converted pursuant to the Partnership Agreement will be issued under the Plan.

8. Amendment. Grantee acknowledges that the Plan may be amended or discontinued in accordance with Section 19 or Section 20 thereof and that this Agreement may be amended or canceled by the Board or the Committee, on behalf of the Partnership, for the purpose of satisfying changes in law or for any other lawful purpose, provided that no such action shall materially impair Grantee’s rights under this Agreement without Grantee’s written consent.

9. No Right to Continued [Service or] Employment. Neither the Plan nor this Agreement will give Grantee any right to continue to be in the [service or] employ of the Company, the Partnership or any of their Affiliates, affect the right of the Company, the Partnership or any of their Affiliates to discharge or discipline such Grantee at any time, or affect any right of such Grantee to terminate his or her [service or] employment at any time.

10. Waiver. The failure of Grantee or the Company to insist upon strict compliance with any provision of this Agreement or the Plan, or to assert any right Grantee or the Company, respectively, may have under this Agreement or the Plan, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement or the Plan.

11. Notices. Notices hereunder shall be mailed or delivered to the Partnership at its principal place of business and shall be mailed or delivered to Grantee at the address on file with the Partnership or, in either case, at such other address as one party may subsequently furnish to the other party in writing.

12. Consent to Electronic Delivery. Grantee agrees that the Company or the Partnership may deliver by email all documents relating to the Plan or the LTIP Units (including without limitation, a copy of the Plan) and all other documents that the Company or Partnership is required to deliver to its security holders (including, without limitation, disclosures that may be required by the Securities and Exchange Commission). Grantee also agrees that the Company or the Partnership may deliver these documents by posting them on a website maintained by the Company or by a third-party under contract with the Company. If the Company posts these documents on a website, it shall notify Grantee by email.

13. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. Facsimile or electronic submission of any signed original document or retransmission of any signed facsimile or other electronic transmission will be deemed the same as delivery of an original.

14. Severability. In the event that one or more provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein.

15. Headings. Section, paragraph and other headings and captions are provided solely as a convenience to facilitate reference. Such headings and captions shall not be deemed in any way material or relevant to the construction, meaning or interpretation of this Agreement or any term or provision hereof.

16. Governing Law. This Agreement and all claims or disputes arising out of or based upon this Agreement or relating to the subject matter hereof shall be governed by, and construed in accordance with, the laws of the State of Maryland, applied without regard to conflict of law principles or rules that would cause the application of the domestic substantive laws of any other jurisdiction.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

	EMPIRE STATE REALTY TRUST, INC.

	By:
		Name:
		Title:

	EMPIRE STATE REALTY OP, L.P.

	By:	EMPIRE STATE REALTY TRUST,
		INC., its general partner

	By:
		Name:
		Title:

The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by Grantee.

Dated: _____________


	[NAME]

ANNEX A

FORM OF LIMITED PARTNER SIGNATURE PAGE


	Signature Line for Limited Partner:
	[NAME]

	Date:
	Address of Limited Partner:

A-1

ANNEX B

ELECTION TO INCLUDE IN GROSS INCOME IN YEAR OF
TRANSFER OF PROPERTY PURSUANT TO SECTION 83(B)
OF THE INTERNAL REVENUE CODE

The undersigned hereby makes an election pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, to include in gross income in 2021 as compensation for services rendered, the fair market value of the property received in connection with his/her services in excess of the amount paid for the property and supplies the following information in accordance with the regulations promulgated thereunder:

1. The name, address and taxpayer identification number of the undersigned are:

Name: _____________________________ (the “Taxpayer”)
Address:
Social Security No. /Taxpayer Identification No.: _____________________

2. Description of property with respect to which the election is being made:

The election is being made with respect to _____________ LTIP Units in Empire State Realty O.P. L.P. (the “Partnership”).

3. The date on which the LTIP Units were transferred is__________.

4. The taxable year to which this election relates is calendar year 20__.

5. The fair market value at time of transfer (determined without regard to any restrictions other than restrictions which by their terms will never lapse) of the LTIP Units with respect to which this election is being made was $0 per LTIP Unit.

6. The amount paid by the Taxpayer for the LTIP Units was $0 per LTIP Unit.

7. The amount to be included in gross income is $0.

8. A copy of this statement has been furnished to the Partnership and to its general partner, Empire State Realty Trust, Inc.

B-1

Dated: ___________________

_________________________

Taxpayer’s Signature

B-2

Exhibit 99.4

PERFORMANCE-BASED VESTING LTIP UNIT VESTING AGREEMENT
UNDER THE
EMPIRE STATE REALTY TRUST, INC.
EMPIRE STATE REALTY OP, L.P.
2024 EQUITY INCENTIVE PLAN

Grantee: _______________________

No. of LTIP Units: _______________

Grant Date: ________________

Pursuant to the Empire State Realty Trust, Inc. Empire State Realty OP, L.P. 2024 Equity Incentive Plan (the “Plan”) and the Amended and Restated Agreement of Limited Partnership, dated as of October 1, 2013, as amended (the “Partnership Agreement”), of Empire State Realty OP, L.P., a Delaware limited partnership (the “Partnership”), Empire State Realty Trust, Inc., a Maryland corporation and the general partner of the Partnership (the “Company”), hereby grants to Grantee named above an other equity-based award (pursuant to Section 11 of the Plan, and referred to herein as an “Award”) in the form of, and by causing the Partnership to issue to Grantee named above, LTIP Units (as defined in the Partnership Agreement) having the rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption and conversion set forth herein and in the Partnership Agreement. The LTIP Units (rounded down to the nearest whole LTIP Unit) shall vest based upon the achievement of the Performance Metrics set forth on Schedule I. If this LTIP Unit Vesting Agreement (this “Agreement”) is accepted, Grantee shall receive the number of LTIP Units specified above as of the Grant Date, subject to the restrictions and conditions set forth herein, in the Plan and in the Partnership Agreement. All capitalized terms not otherwise defined herein shall have the same meanings as set forth in the Plan.

2. Definitions. The following terms have the following meanings:

(a) “Earned LTIP Units” has the meaning set forth on Schedule I.

(b) “Effective Date” means ___________, 20__.

(c) “Performance Period” means the period commencing, except as provided in Section 5(b) below, on the Effective Date and ending on the earlier of (i) __________, 20___ and (ii) the date determined in accordance with Section 12(c)(ii) of the Plan.

3. Restrictions and Conditions.

4. Lapse of Restrictions.

(a) Following the completion of the Performance Period, the Committee shall determine the outcomes on each of the Performance Metrics and will certify the level of achievement with respect to each such metric and the portion of the LTIP Units granted here that have become Earned LTIP Units. Following the Committee’s determination, LTIP Units granted herein which have not become Earned LTIP Units shall be immediately forfeited to the Partnership without any consideration by the Partnership or any of its Affiliates, and neither Grantee nor any of his or her successors, heirs, assigns or personal representatives will thereafter have any further rights or interests in such forfeited LTIP Units.

(b) The restrictions and conditions in Section 3 of this Agreement with respect to the Earned LTIP Units (if any) shall lapse and the Earned LTIP Units shall vest as to [________]¹ percent of the Earned LTIP Units, rounded down to the nearest whole LTIP Unit, on the [________]¹anniversary of the Effective Date and as to the remainder of the Earned LTIP Units on the day immediately preceding the [_________]¹ anniversary of the Effective Date. Notwithstanding the foregoing, except as provided in Section 4(c) or Section 5 below or in Section 12(c) of the Plan, an Earned LTIP Unit shall not vest on any vesting date unless Grantee continues to be employed by the Company, the Partnership or any of their Affiliates through the vesting date applicable to such LTIP Unit. No Earned LTIP Unit granted hereunder shall be sold, assigned, transferred, pledged, hypothecated, given away or in any other manner disposed of, or encumbered, whether voluntarily or by operation of law until the [________]²anniversary of the vesting date of such Earned LTIP Unit; provided, that this sentence shall not prevent conversion of an LTIP Unit to a Series PR OP Unit (as defined in the Partnership Agreement) and/or Class A REIT Share (as defined in the Partnership Agreement) if such conversion is otherwise permitted under this Agreement and the Partnership Agreement.

¹ Number of years and vesting dates to be inserted, usually vesting 50% at end of the performance period and 50% one year thereafter.

² Length of lock-up period to be inserted, usually 2 years from vesting date.

(c) In the event of a Corporate Event, this Award shall be treated as set forth in Section 12 of the Plan; provided, however, that if Earned LTIP Units do not remain outstanding or are not replaced with awards of the Company’s successor in a Change in Control, they shall become fully vested upon the consummation of the Change in Control.

5. Termination of Employment.

(a) In the event of Grantee’s Termination for any reason, except as provided in (b) below, all vesting with respect to the LTIP Units (whether or not such LTIP Units are Earned LTIP Units) shall immediately cease, and all LTIP Units that have not vested at that time will be forfeited to the Partnership without payment of any consideration by the Partnership or any of its Affiliates, and neither Grantee nor any of his or her successors, heirs, assigns, or personal representatives will thereafter have any further rights or interests in such LTIP Units.

(i) If such Termination occurs following the completion of the Performance Period, any restrictions and conditions on the Earned LTIP Units shall lapse, and the Earned LTIP Units, unless earlier terminated or forfeited and to the extent not otherwise vested, shall automatically become fully vested as of such date of Termination; and

(ii) If such Termination occurs prior to the expiration of the Performance Period, (A) the end date of the Performance Period shall be the date immediately prior to the Termination and the number of Earned LTIP Units shall be determined as of such date based on the applicable Performance Metrics during such shortened Performance Period, provided that “N” shall be the number of full or partial calendar years completed during the Performance Period (e.g., “N” shall be 2.5 if the termination occurs two-years and six months after the Effective Date), and (B) any restrictions and conditions on the LTIP Units that become Earned LTIP Units as of the Termination shall lapse and the number of Earned LTIP Units, unless earlier terminated or forfeited, that become vested as of such date of Termination shall be determined by multiplying the number of Earned LTIP Units by a fraction, the numerator of which is the number of days in the shortened Performance Period and the denominator of which is 1,096.

(c) Notwithstanding any other provision hereof, if Grantee is a party to an effective Participant Agreement with the Company, then the terms of such Participant Agreement shall supersede any contrary provision in this Agreement and any restrictions and conditions shall also lapse if and as may otherwise be required by such Participant Agreement; and nothing herein shall limit any rights Grantee may otherwise have under such Participant Agreement.

6. Distributions. During the Performance Period, Grantee shall be entitled to receive only ten percent (10%) of distributions with respect to the LTIP Units. At the end of the Performance Period, Grantee shall receive an amount equal to one hundred percent (100%) of all distributions paid by the Partnership during the Performance Period with respect to one OP Unit (as defined in the Partnership Agreement) multiplied by the number of Earned LTIP Units, reduced by the distributions received by Grantee during the Performance Period with respect to the LTIP Units. After the Performance Period, Grantee shall receive all distributions paid by the Partnership with respect to all Earned LTIP Units.

7. Covenants, Representation and Warranties. Grantee hereby covenants as follows:

(a) So long as Grantee holds any LTIP Units, Grantee shall disclose to the Partnership in writing such information as may be reasonably requested with respect to ownership of LTIP Units as the Partnership may deem reasonably necessary to ascertain and to establish compliance with provisions of the Code, as applicable to the Partnership or to comply with the requirements of any other appropriate tax authority.

(b) Grantee hereby agrees to make an election under Section 83(b) of the Code with respect to the LTIP Units awarded hereunder, and has delivered with this Agreement a completed, executed copy of the election form attached hereto as Annex B. Grantee agrees to file the election within thirty (30) days after the Grant Date with the Internal Revenue Service and to promptly provide a copy of such filed election to the Company.

(c) Grantee hereby agrees not to dispose of the LTIP Units subject to this Award within [______]³ years after the vesting date. The Partnership and Grantee hereby agree to treat Grantee as the owner of the LTIP Units from the Grant Date. Grantee hereby agrees to take into account the distributive share of Partnership income, gain, loss, deduction, and credit associated with the LTIP Units in computing Grantee’s income tax liability for the entire period during which Grantee has the LTIP Units.

³ Length of lock-up period to be inserted, usually 2 years from vesting date.

8. Clawback. This Award is subject to any incentive compensation clawback or recoupment policy currently in effect or as may be adopted by the Board, and in each case, as may be amended from time to time.

9. Assignment and Transfer. Except as expressly permitted under this Agreement or by the Committee pursuant to the Plan, the rights and interests of Grantee under this Agreement may not be sold, assigned, encumbered, pledged, or otherwise transferred except in the event of the death of Grantee, by will or by the laws of descent and distribution. In the event of any attempt by Grantee in breach of the foregoing sentence to sell, assign, encumber, pledge or otherwise transfer its rights and interests hereunder, or in the event of the levy or any attachment, execution or similar process upon the rights or interests hereby conferred, the Company or the Partnership may require Grantee to forfeit the LTIP Units by notice to Grantee, and the LTIP Units and all rights hereunder shall thereupon become null and void. The rights and protections of the Company and the Partnership hereunder shall extend to any successors or assigns of the Company and the Partnership.

10. Incorporation of the Plan. This Agreement is made under and subject to and governed by all of the terms and conditions of the Plan. In the event of any discrepancy or inconsistency between this Agreement and the Plan, the terms and conditions of the Plan shall control. By signing this Agreement, Grantee confirms that he or she has received a copy of the Plan and has had an opportunity to review the contents thereof. Any shares of Stock issued in exchange for partnership units into which LTIP Units may have been converted pursuant to the Partnership Agreement will be issued under the Plan.

11. Amendment. Grantee acknowledges that the Plan may be amended or discontinued in accordance with Section 19 or Section 20 thereof and that this Agreement may be amended or canceled by the Board or the Committee, on behalf of the Partnership, for the purpose of satisfying changes in law or for any other lawful purpose, provided that no such action shall materially impair Grantee’s rights under this Agreement without Grantee’s written consent.

12. No Right to Continued Employment. Neither the Plan nor this Agreement will give Grantee any right to continue to be in the employ of the Company, the Partnership or any of their Affiliates, affect the right of the Company, the Partnership or any of their Affiliates to discharge or discipline such Grantee at any time, or affect any right of such Grantee to terminate his or her employment at any time.

13. Waiver. The failure of Grantee or the Company to insist upon strict compliance with any provision of this Agreement or the Plan, or to assert any right Grantee or the Company, respectively, may have under this Agreement or the Plan, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement or the Plan.

14. Notices. Notices hereunder shall be mailed or delivered to the Partnership at its principal place of business and shall be mailed or delivered to Grantee at the address on file with the Partnership or, in either case, at such other address as one party may subsequently furnish to the other party in writing.

15. Consent to Electronic Delivery. Grantee agrees that the Company or the Partnership may deliver by email all documents relating to the Plan or the LTIP Units (including without limitation, a copy of the Plan) and all other documents that the Company or Partnership is required to deliver to its security holders (including, without limitation, disclosures that may be required by the Securities and Exchange Commission). Grantee also agrees that the Company or the Partnership may deliver these documents by posting them on a website maintained by the Company or by a third-party under contract with the Company. If the Company posts these documents on a website, it shall notify Grantee by email.

16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. Facsimile or electronic submission of any signed original document or retransmission of any signed facsimile or other electronic transmission will be deemed the same as delivery of an original.

17. Severability. In the event that one or more provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein.

18. Headings. Section, paragraph and other headings and captions are provided solely as a convenience to facilitate reference. Such headings and captions shall not be deemed in any way material or relevant to the construction, meaning or interpretation of this Agreement or any term or provision hereof.

19. Governing Law. This Agreement and all claims or disputes arising out of or based upon this Agreement or relating to the subject matter hereof shall be governed by, and construed in accordance with, the laws of the State of Maryland, applied without regard to conflict of law principles or rules that would cause the application of the domestic substantive laws of any other jurisdiction.

IN WITNESS WHEREOF, the parties have executed this Agreements as of the date first above written.

	EMPIRE STATE REALTY TRUST, INC.

	By:
		Name:
		Title:

	EMPIRE STATE REALTY OP, L.P.

	By:	EMPIRE STATE REALTY TRUST,
		INC., its general partner

	By:
		Name:
		Title:

The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by Grantee.

_____________ Dated:


	[NAME]

Schedule I
Performance Metrics

ANNEX A

FORM OF LIMITED PARTNER SIGNATURE PAGE


	Signature Line for Limited Partner:
	[NAME]

	Date:
	Address of Limited Partner:

A-1

ANNEX B

ELECTION TO INCLUDE IN GROSS INCOME IN YEAR OF
TRANSFER OF PROPERTY PURSUANT TO SECTION 83(B)
OF THE INTERNAL REVENUE CODE

1. The name, address and taxpayer identification number of the undersigned are:

Name: _________________________ (the “Taxpayer”)

Address: _________________________________________________________

Social Security No. / Taxpayer Identification No.: ________________________

2. Description of property with respect to which the election is being made:

The election is being made with respect to _____________ LTIP Units in Empire State Realty O.P. L.P. (the “Partnership”).

3. The date on which the LTIP Units were transferred is____________.

4. The taxable year to which this election relates is calendar year 20__.

5. Nature of restrictions to which the LTIP Units are subject:

(a) Until the LTIP Units vest, the Taxpayer may not transfer in any manner any portion of the LTIP Units without the consent of the Partnership.

(b) The LTIP Units are subject to both performance-based vesting conditions, which are satisfied based upon [performance metrics to be inserted] over a [_______] year performance period (or a shorter period in the event of a Change in Control or upon certain terminations of employment) and service-based vesting conditions, such that [____] percent of the LTIP Units that satisfy the performance-based vesting condition will vest on each of the [______] and [________] anniversaries of the effective date set by the grant award, provided the undersigned continues employment with the Partnership, its general partner, Empire State Realty Trust, Inc. or any of their respective affiliates through such vesting date, subject to accelerated vesting in certain circumstances.

7. The amount paid by the Taxpayer for the LTIP Units was $0 per LTIP Unit.

B-1

8. The amount to be included in gross income is $0.

9. A copy of this statement has been furnished to the Partnership and to its general partner, Empire State Realty Trust, Inc.

Dated: ___________________

_________________________

Taxpayer’s Signature

B-2

Exhibit 99.5

TIME-BASED VESTING LTIP UNIT VESTING AGREEMENT
UNDER THE
EMPIRE STATE REALTY TRUST, INC.
EMPIRE STATE REALTY OP, L.P.
2024 EQUITY INCENTIVE PLAN

Grantee: ___________________

No. of LTIP Units: _________________

Grant Date: _____________________

2. Restrictions and Conditions.

3. Lapse of Restrictions.

(a) The restrictions and conditions in Section 2 of this Agreement shall lapse and the LTIP Units granted herein shall vest as to [____________]¹; provided, that, with respect to the last such annual installment, the number of LTIP Units that vest in the installment shall be such that Grantee will be fully vested in the total number of LTIP Units listed above as of the applicable annual anniversary. Notwithstanding the foregoing, except as provided in Section 3(b) or Section 4 below or in Section 12(c) of the Plan, an LTIP Unit shall not vest on any vesting date unless Grantee continues to be employed by the Company, the Partnership or any of their Affiliates through the vesting date applicable to such LTIP Unit. No LTIP Unit granted hereunder shall be sold, assigned, transferred, pledged, hypothecated, given away or in any other manner disposed of, or encumbered, whether voluntarily or by operation of law until the [_________]² anniversary of the applicable [vesting][grant] date of such LTIP Unit; provided that, this sentence shall not prevent conversion of an LTIP Unit to a Series PR OP Unit (as defined in the Partnership Agreement) and/or Class A REIT Share (as defined in the Partnership Agreement) if such conversion is otherwise permitted under this Agreement and the Partnership Agreement.

4. Termination of Employment.

(b) In the event Grantee’s Termination is a result of (i) death, (ii) Disability, (iii) a termination without Cause by the Company or its Affiliates, (iv) a voluntary termination by Grantee that follows the Grantee’s Retirement Eligibility Date, or (v) a termination by Grantee with Good Reason (as defined in Grantee’s Participant Agreement); any restrictions and conditions on all LTIP Units subject to this Agreement shall lapse and the LTIP Units, unless earlier terminated or forfeited and to the extent not otherwise vested, shall automatically become fully vested as of such date of Termination.

¹ Number of years and vesting dates to be inserted, usually in range of 3-5 years.

² Length of lock-up period to be inserted, usually 2 years from vesting date or 4 years from grant date, as applicable.

5. Distributions. Distributions on the LTIP Units shall be paid to Grantee in accordance with the terms of the Partnership Agreement.

6. Covenants, Representation and Warranties. Grantee hereby covenants as follows:

(c) Grantee hereby agrees not to dispose of the LTIP Units subject to this Award within [____________]³ after the [vesting][grant] date.

The Partnership and Grantee hereby agree to treat Grantee as the owner of the LTIP Units from the Grant Date. Grantee hereby agrees to take into account the distributive share of Partnership income, gain, loss, deduction, and credit associated with the LTIP Units in computing Grantee’s income tax liability for the entire period during which Grantee has the LTIP Units.

³ Length of lock-up period to be inserted, usually 2 years from vesting date or 4 years from grant date, as applicable.

11. No Right to Continued Employment. Neither the Plan nor this Agreement will give Grantee any right to continue to be in the employ of the Company, the Partnership or any of their Affiliates, affect the right of the Company, the Partnership or any of their Affiliates to discharge or discipline such Grantee at any time, or affect any right of such Grantee to terminate his or her employment at any time.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

	EMPIRE STATE REALTY TRUST, INC.

	By:
		Name:
		Title:

	EMPIRE STATE REALTY OP, L.P.

	By:	EMPIRE STATE REALTY TRUST,
		INC., its general partner

	By:
		Name:
		Title:

The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by Grantee.

Dated: _____________


	[NAME]

ANNEX A

FORM OF LIMITED PARTNER SIGNATURE PAGE


	Signature Line for Limited Partner:
	[NAME]

	Date:
	Address of Limited Partner:

A-1

ANNEX B

ELECTION TO INCLUDE IN GROSS INCOME IN YEAR OF
TRANSFER OF PROPERTY PURSUANT TO SECTION 83(B)
OF THE INTERNAL REVENUE CODE

1. The name, address and taxpayer identification number of the undersigned are:

Name: __________________________ (the “Taxpayer”)
Address:

Social Security No. /Taxpayer Identification No.: ____________________

2. Description of property with respect to which the election is being made:

The election is being made with respect to _______________ LTIP Units in Empire State Realty O.P. L.P. (the “Partnership”).

3. The date on which the LTIP Units were transferred is ___________.

4. The taxable year to which this election relates is calendar year 20__.

5. Nature of restrictions to which the LTIP Units are subject:

(a) The Taxpayer may not transfer in any manner any unvested portion of the LTIP Units without the consent of the Partnership.

(b) The LTIP Units are subject to service-based vesting conditions, such that _______________ of the LTIP Units will vest on__________________________, provided the undersigned continues employment with the Partnership, its general partner, Empire State Realty Trust, Inc. or any of their respective affiliates through each such date, subject to accelerated vesting in certain circumstances.

7. The amount paid by the Taxpayer for the LTIP Units was $0 per LTIP Unit.

8. The amount to be included in gross income is $0.

9. A copy of this statement has been furnished to the Partnership and to its general partner, Empire State Realty Trust, Inc.

B-1

Dated: ___________________

_________________________

Taxpayer’s Signature

B-2

Exhibit 107

Calculation of Filing Fee Table

Form S-8

(Form Type)

Empire State Realty Trust, Inc.

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered Securities

Security Type	Security Class Title	Fee Calculation Rule	Amount Registered(1)	Proposed Maximum Offering Price Per Unit(2)	Maximum Aggregate Offering Price(2)	Fee Rate	Amount of Registration Fee
Equity	Class A Common Stock, $0.01 par value per share	Rule 457(c) and Rule 457(h)	11,000,000	$9.34	$102,685,000	$147.60 per $1,000,000	$15,156.31
Total Offering Amounts					$102,685,000		$15,156.31
Total Fee Offsets							$0.00
Net Fee Due							$15,156.31

(1)	Represents the maximum number of shares of Class A common stock, $0.01 par value per share (“Class A Common Stock”), issuable under the Empire State Realty Trust, Inc. Empire State Realty OP, L.P. 2024 Equity Incentive Plan (the “2024 Equity Incentive Plan”). The 2024 Equity Incentive Plan was approved by the stockholders of the registrant on May 9, 2024. Pursuant to Rule 416 under the Securities Act of 1933, as amended, (the “Securities Act”), this registration statement also covers any additional shares of Class A Common Stock that may become issuable under the 2024 Equity Incentive Plan by reason of certain corporate transactions or events, including any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration, which would increase the number of the registrant’s outstanding shares of Class A Common Stock.

(2)	Estimated solely for purposes of determining the registration fee pursuant to the provisions of Rule 457(c) and Rule 457(h) under the Securities Act by averaging the high and low sales prices of the registrant’s Class A Common Stock as reported by the New York Stock Exchange on May 2, 2024.