What changed in this filing

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Item 5. Other Information

2021-05-10 compared with 2020-11-09 · 72 added, 81 removed, 33 unchanged (82% of the section changed)

Other Information.

Management and Board Changes

On November 5, 2020, the Company’s board of directors (the “Board”) elected Gregory McCray to serve as an independent member of the Board, effective January 1, 2021.

In addition, on November 3, 2020 and November 4, 2020, Douglas Crocker II and John Somers, respectively, each provided notice of resignation as a member of the Board, including all applicable committee memberships, effective December 31, 2020.

Crocker’s and Mr.

Somers’ respective decision was not a result of any disagreement with the Company on any matter relating to its operations, policies or practices.

Concurrently with the foregoing Board appointment and resignations, the Board determined to decrease the size of the Board to eleven (11) directors, effective January 1, 2021.

McCray, age 57, is an experienced executive with 30 years of business, marketing, sales, engineering, operations, mergers and acquisitions, management and international experience in the communications technology industry.

Since June 2018, Mr.

McCray has served as the Chief Executive Officer of FDH Infrastructure Services (“FDH”), an engineering and science company that monitors, inspects, designs and performs structural analysis for infrastructure assets utilizing wireless monitoring devices and patented non-destructive testing techniques.

During his career, Mr.

McCray has served in a number of management and executive roles, including CEO of Access/Google Fiber in 2017;

CEO of Aero Communications Inc., which provides installation, services and support to the communications industry, from 2013 to 2016;

CEO of Antenova, a developer of antennas and radio frequency modules for mobile devices, from 2003 to 2012;

Chairman and CEO of PipingHot Networks, which brought broadband fixed wireless access equipment to market, from 2001 to 2002;

and Senior Vice President of customer operations at Lucent Technologies from 1996 to 2000, where he managed the Customer Technical Operations Group for Europe, the Middle East and Africa.

McCray currently serves on the board of directors of FDH, FreeWave Technologies and ADTRAN, Inc.

McCray served as a director of Centurylink, Inc.

CTL), the third largest network operator in America, from January 2005 to February 2017, where he served as chairman of the Cyber Security & Risk Committee from 2015 to 2017.

McCray holds a Bachelor of Science degree in Computer Engineering from Iowa State University and a Master of Science degree in Industrial & Systems Engineering from Purdue University.

He has also completed executive business programs at the University of Illinois, Harvard, and INSEAD.

In accordance with the Company’s non-employee director compensation policy as described in the Company’s definitive proxy statement on Schedule 14A filed on April 1, 2020 with the Securities and Exchange Commission, Mr.

McCray’s compensation for his services as a non-employee director will be consistent with that of the Company’s other non-employee directors, subject to pro-ration to reflect the commencement date of his service on the Board.

McCray is not a party to any transaction that would require disclosure under Item 404(a) of Regulation S-K.

In addition, on November 5, 2020, the Company entered into a Separation and Release Agreement (the “Separation Agreement”) with Mark M.

Hedstrom in connection with Mr.

Hedstrom’s resignation as our Chief Operating Officer and Executive Vice President, effective December 23, 2020 (the “Separation Date”).

Hedstrom currently serves, and is expected to continue to serve, as the Chairman of CLNC’s board of directors.

Pursuant to the Separation Agreement, and provided that Mr.

Hedstrom executes a supplemental release of claims, attached as an annex to the Separation Agreement, within 21 days following the Separation Date and does not revoke such supplemental release within seven days of such execution, Mr.

Hedstrom will receive the following benefits and payments, which are no greater than those provided for in his employment agreement (as described in the Company’s definitive proxy statement on Schedule 14A filed with the Securities and Exchange Commission on April 1, 2020) consisting of (i) a lump sum cash payment equal to $3,500,000, (ii) a prorated target bonus for the year of termination, (iii) continued medical, dental and vision benefits at active employee rates for 24 months following the Separation Date, and (iv) full vesting of all equity-based awards of the Company and CLNC, carried interests and other like compensation that he holds to the extent unvested on the Separation Date.

In addition, under the Separation Agreement, Mr.

Hedstrom will receive certain carried interest allocations in connection with certain of the Company’s investments products.

In connection with his separation from the Company, Mr.

Hedstrom also resigned from all other officer and director positions at the Company and its affiliates (other than in the case of Mr.

Hedstrom’s position as Chairman of CLNC’s board of directors) effective as of the Separation Date.

In addition, on November 5, 2020, an affiliate of the Company entered into a consulting agreement (the “Consulting Agreement”) with Mr.

Hedstrom, pursuant to which Mr.

Hedstrom will provide certain services to the Company for a one-year term, commencing on January 1, 2021.

Hedstrom’s services to the Company will include, among others, providing advice and assistance on certain operational matters of the Company and continuing to serve as Chairman of

CLNC’s board of directors.

Hedstrom has also agreed that he will resign from CLNC’s board of directors within three business days following a request by the Company to do so.

The Company will pay a flat fee of $50,000 per month for Mr.

Hedstrom’s services under the Consulting Agreement.

CEO Aircraft Reimbursement

On November 5, 2020, the Company’s board of directors approved an amendment to the employment agreement, dated as of July 25, 2019, between the Company and Marc C.

Ganzi, the Company’s President and Chief Executive Officer, to provide for the reimbursement by the Company of certain defined fixed costs of any aircraft owned by Mr.

The fixed cost reimbursements will be made based on an allocable portion of an aircraft’s annual budgeted cash fixed operating costs, based on the number of hours the aircraft will be used for business purposes.

At least once a year, the Company will reconcile the budgeted fixed operating costs with the actual fixed operating costs of the aircraft, and the Company or Mr.

Ganzi, as applicable, will make a true-up payment for any difference.

The fixed cost reimbursement will be in addition to the Company’s reimbursement of certain variable operational costs of business travel on a chartered or private jet, as provided in Mr.

Ganzi’s employment agreement.

See "Aircraft" in Note 20 in the Company’s consolidated financial statements in this Quarterly Report for additional information regarding aircraft reimbursements.

Submission of Matters to a Vote of Security Holders - Results of 2021 Annual Meeting of Stockholders

On May 4, 2021, the Company held its 2021 Annual Meeting of Stockholders to vote on the proposals described in detail in the Company's 2021 definitive proxy statement filed with the U.S.

Securities and Exchange Commission on March 30, 2021 (the "Proxy Statement").

The final results for the votes regarding each proposal are set forth below.

Election of Directors

The following persons were duly elected to the Company's Board of Directors to serve until the 2022 Annual Meeting of Stockholders and until his or her successor is duly elected and qualified, by the following vote:

Nominee Votes For Votes Against Abstentions Broker Non-Votes

311,214,262 15,121,300 1,046,556 54,933,638

Braxton Carter 324,940,703 2,220,241 221,174 54,933,638

Curtin 325,141,135 1,863,327 377,656 54,933,638

Diefenderfer 325,103,917 1,927,576 350,625 54,933,638

Fosheim 322,074,609 5,055,118 252,391 54,933,638

Ganzi 325,967,660 1,234,695 179,763 54,933,638

McCray 325,153,801 1,864,584 363,733 54,933,638

Sháka Rasheed 325,693,866 1,321,733 366,519 54,933,638

Dale Anne Reiss 324,723,468 2,297,492 361,158 54,933,638

Steffens 310,209,092 16,923,768 249,259 54,933,638

Approval (on an advisory, non-binding basis) of Executive Compensation

The Company's stockholders approved (on an advisory, non-binding basis) the compensation of the Company's named executive officers as of December 31, 2020 as described in the Compensation Discussion and Analysis and executive compensation tables of the Proxy Statement.

The table below sets forth the voting results for this proposal:

Votes For Votes Against Abstentions Broker Non-Votes

310,922,403 12,342,945 4,116,770 54,933,638

Ratification of Appointment of Independent Registered Public Accounting Firm

The Company's stockholders ratified the appointment of Ernst & Young LLP as the Company's independent registered public accounting firm for the fiscal year ending December 31, 2021, by the following vote:

Votes For Votes Against Abstentions Broker Non-Votes

380,214,141 1,588,338 513,277 —

Employment Agreement with Sonia Kim

On May 5, 2021, we entered into an employment agreement with Sonia Kim, effective as of January 1, 2021, in connection with Ms.

Kim’s service as a Managing Director and the Chief Accounting Officer of the Company.

The employment agreement provides for an initial term of one year for Ms.

Kim, which began on January 1, 2021, with each initial term subject to automatic renewals of additional successive one-year periods unless either party provides at least 180 days’ advance notice of non-renewal.

The agreement requires that Ms.

Kim will devote her full business time and attention to the performance of her duties to us, but will be permitted to engage in certain other outside activities so long as they do not unreasonably interfere with the performance of her duties to us.

The agreement provides that Ms.

Kim will receive an annual base salary of not less than $350,000, a discretionary annual cash bonus with a target amount of not less than $210,000 and annual grants of equity-based awards with a target value of not less than $315,000.

In addition, Ms.

Kim will continue to receive allocations in respect of carried interests in respect of funds managed by us that were granted to her prior to the effective date of the employment agreement and will be eligible to be granted new allocations in respect of carried interests in respect of funds managed by us as is determined by the Board (or a committee thereof) from time to time in consultation with Ms.

Kim will be eligible to participate in certain of our benefit plans made available to our senior executive officers from time to time and to receive certain of the perquisites that are applicable to our senior executive officers.

The agreement provides that if Ms.

Kim’s employment is terminated by us without “cause” (as defined in the agreement and including non-renewal of the employment agreement by us) or by Ms.

Kim for “good reason” (as defined in the agreement and described below) and Ms.

Kim executes a release of claims, she will be eligible to receive (i) a lump sum cash payment equal to the sum of her base salary and average annual bonus with respect to the three prior calendar years (or, if such termination of employment occurs prior to Ms.

Kim receiving her annual bonus in respect of calendar year 2023, then her target annual bonus), (ii) a lump sum cash payment equal to the annual bonus payable in respect of the year prior to the year of termination, if unpaid as of the date of termination, (iii) a pro-rated target bonus for the year of termination, (iv) full vesting of all equity-based awards of the company, carried interests and other like compensation that she holds, to the extent unvested upon her termination and, (v) continued medical, dental and vision benefits at active employee rates for 24 months following termination.

The agreement provides that if Ms.

Kim provides notice to us of her intention not to renew the agreement upon the scheduled expiration of the initial term or any renewal term, then she will receive (i) a lump sum cash payment in respect of the annual bonus payable in respect of the year prior to the year of termination, if unpaid as of the date of termination, and (ii) a pro-rated target bonus for the year of termination.

For purposes of the agreement, “good reason” includes, in summary, (i) a material diminution in Ms.

Kim’s duties, authority or responsibilities or a diminution in her title or position, (ii) a requirement that she report to any person other than our Chief Executive Officer or Chief Financial Officer (iii) a reduction in her base salary, target annual cash bonus or target annual equity incentive grant then in effect, (iv) a 25-mile relocation of her principal place of business, or (v) a material breach by us of the agreement or any other material agreement between Ms.

The agreement includes a provision providing that if any payments to be made to Ms.

Kim, whether under the agreement or otherwise, would subject her to the excise tax on so-called “golden parachute payments” in accordance with Sections 280G or 4999 of the Code, then the payments will be reduced to the extent necessary to avoid the excise tax, but only if the amount of the payments after such reduction would result in Ms.

Kim receiving a greater net after-tax benefit than if all of the payments were provided and the excise tax were imposed.

In addition, the agreement, through a restrictive covenant agreement that is included as an exhibit to the agreement, provides that Ms.

Kim will not, subject to certain exceptions, compete with us, or solicit our investors or customers or employees or those of our subsidiaries during her employment with us and for the one-year period following the termination of her employment with us unless her employment is terminated by us without cause (as defined in the agreement and including non-renewal of the employment agreement by us) or by Ms.

Kim for “good reason” (as defined in the agreement and described above).

The agreement contains covenants relating to the treatment of confidential information and intellectual property matters and restrictions on the ability of Ms.

Kim and us to disparage the other.

The foregoing description of the employment agreement does not purport to be complete and is qualified in its entirety by reference to such agreement, which is attached hereto as Exhibit 10.8, and is incorporated herein by reference.

Exhibit Number Description

5 unchanged sentences

(fka Colony NorthStar, Inc.) (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed on June 25, 2018)

3.4 Articles Supplementary designating Colony NorthStar, Inc.’s 7.15% Series I Cumulative Redeemable Perpetual Preferred Stock, liquidation preference $25.00 per share, par value $0.01 per share (incorporated by reference to Exhibit 3.2 to the Company’s Form 8-A filed on June 5, 2017)

3.5 Articles Supplementary designating Colony NorthStar, Inc.’s 7.125% Series J Cumulative Redeemable Perpetual Preferred Stock, liquidation preference $25.00 per share, par value $0.01 per share (incorporated by reference to Exhibit 3.3 to Colony NorthStar, Inc.’s Registration Statement on Form 8-A filed on September 22, 2017)

4.1 Form of Class A Common Stock Purchase Warrant of Colony Capital, Inc.

(incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K filed on July 23, 2020)

4.2 Indenture, dated as of July 21, 2020, among Colony Capital Operating Company, LLC, Colony Capital, Inc.

and The Bank of New York Mellon, as trustee (incorporated by reference to Exhibit 4.2 to the Company's Current Report on Form 8-K filed on July 23, 2020)

4.3 Form of 5.75% Exchangeable Senior Notes due 2025 (included in Exhibit 4.2)

10.1 Investment Agreement, dated as of July 7, 2020, by and among Colony Valhalla Partners I-A Holdings, L.P., a Delaware limited partnership, Colony Valhalla Partners I-B Holdings, L.P., a Delaware limited partnership, Colony Valhalla Partners II Holdings, L.P., a Delaware limited partnership, CBRE Caledon Valhalla Aggregator Holdings LP, a Delaware limited partnership and Vantage Data Centers Holdings, LLC, a Delaware limited liability company (incorporated by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K filed on July 13, 2020)

10.2 Investment Agreement, dated as of July 17, 2020, by and among W-Catalina (S) LLC, Colony Capital Operating Company, LLC, Colony Capital, Inc.

(for the limited purposes set forth therein) and the Initial Wafra Representative (as defined therein) (incorporated by reference to Exhibit 10.

4 to the Company's Quarterly Report on Form 10-Q for the quar terly period ended J une 30, 2020 ) ***

10.3 Carry Investment Agreement, dated as of July 17, 2020, by and among W-Catalina (C) LLC, Colony Capital Operating Company, LLC, Colony DCP (CI) Bermuda, LP, a Bermuda limited partnership, Colony DCP (CI) GP, LLC (incorporated by reference to Exhibit 10.2 to the Company's Current Report on Form 8-K filed on July 23, 2020) ***

10.4 Investor Rights Agreement, dated as of July 17, 2020, by and among Colony Capital, Inc., Colony Capital Operating Company, LLC, Colony Capital Digital Holdco, LLC, Colony DC Manager, LLC and W-Catalina (S) LLC (incorporated by reference to Exhibit 10.3 to the Company's Current Report on Form 8-K filed on July 23, 2020) ***

10.5 Carried Interest Participation Agreement, dated as of July 17, 2020, by and among Colony DCP (CI) Bermuda, LP, Colony DCP (CI) GP, LLC, Colony Capital, Inc., Colony Capital Operating Company, LLC, W-Catalina (S) LLC and W-Catalina (C) LLC (incorporated by reference to Exhibit 10.4 to the Company's Current Report on Form 8-K filed on July 23, 2020) ***

10.6 Amended and Restated Restrictive Covenant Agreement, dated as of July 17, 2020, by and between Colony Capital, Inc.

and Marc Ganzi (incorporated by reference to Exhibit 10.5 to the Company's Current Report on Form 8-K filed on July 23, 2020)

Exhibit Number Description

10.7 Acknowledgment Letter, dated as of July 17, 2020, by and among Marc Ganzi, W-Catalina (S) LLC, W-Catalina (C) LLC and Colony Capital, Inc.

(incorporated by reference to Exhibit 10.6 to the Company's Current Report on Form 8-K filed on July 23, 2020)

10.8 Registration Rights Agreement, dated as of July 21, 2020, by and among Colony Capital Operating Company, LLC, Colony Capital, Inc.

and the initial purchasers party thereto (incorporated by reference to Exhibit 10.7 to the Company's Current Report on Form 8-K filed on July 23, 2020)

10.9 Joinder and Amendment to Letter Agreement, dated as of July 22, 2020, by and among Digital Bridge Holdings, LLC, CC Valhalla Investor, LLC, Marc Ganzi, Benjamin Jenkins and the other parties named therein (inco rporated by reference to Exhibit 10.11 to the Company's Quarterly Report on Form 10-Q for the quarterly peri od en ded June 30, 2020)

10.10 Assignment and Contribution Agreement, dated as of July 22, 2020, by and among Marc Ganzi, Benjamin Jenkins, MCG Analog, LLC, the Ganzi Extended Family Trust, BJJ Analog, LLC, DB Aviator Manager Rollover Holdings, L.P., DCR YieldCo Holdings, LP and DCR and Aviator Holdings GP, LLC (incorporated by reference to Exhibit 10.1 2 to the Company's Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2020)

10.11 Amended and Restated Partnership Agreement of DB Aviator Manager Rollover Holdings, L.P., dated as of July 22, 2020, by and among Colony Valhalla GP, LLC, Colony Capital Acquisitions, LLC, MCG Analog, LLC, Ganzi Extended Family Trust, BJJ Analog, LLC and Valhalla Management Holdings, LLC (incorporated by reference to Exhibit 10.1 3 to the Company's Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2020)

10.12* Agreement of Purchase and Sale (Sale of Membership Interests in the Owners of Hotel Portfolios Consisting of One Hundred Ninety-Seven (197) Hotel Properties) , dated as of Sept ember 22, 2020 , between the CLNY Seller Entities (as named therein) and S ilverplate C apital P ar tners LLC ***

10.13* First Amend ment to Agreement of Purchase and Sale (Sale of Membership Interests in the Owners of Hotel Portfolios Consisting of One Hundred Ninety-Seven (197) Hotel Properties), dated as of October 9 , 2020, between the CLNY Seller Entities (as named therein) and Silverplate C apital P artners LLC

10.1 Third Amended and Restated Limited Liability Company Agreement of Colony Capital Operating Company, LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on January 10, 2017)

10.2 Second Amendment to Agreement of Purchase and Sale, dated as of February 28, 2021, between the CLNY Seller Entities (as named therein) and Silverplate Capital Partners LLC (incorporated by reference to Exhibit 10.55 to the Company 's Annual Rep ort on Form 10-K f iled on March 1, 2021 )

10.3 Third Amendment to Agreement of Purchase and Sale, dated March 11, 2021, among the CLNY Seller Entities (as named therein) and Silverplate Capital Partners LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on March 17, 2021)

Separation Agreement, dated as of March 30, 2021, by and between Thomas J.

and Colony Capital, Inc.

10.5* Investment Agreement, dated as of March 30, 2021, by and among Barrack Colony Partners, LLC, Thomas J.

Barrack, J r., Colony Capital , Inc.

and Colony OED Investments, LLC

Amended and Restated Employment Agreement, dated as of December 30, 2020, between Colony Capital, Inc.

Redington (incorporated by reference to Exhibit 10.51 to the Company’s Annual Report on Form 10-K filed on March 1, 2021)

Offer Letter, dated as of December 18, 2020, by and between Colony Capital, Inc.

and Sonia Kim (incorporated by reference to Exhibit 10.52 to the Company’s Annual Report on Form 10-K filed on March 1, 2021)

Employment Agreement, dated as of May 5, 2021 between Colony Capital, Inc.

and Sonia Kim

31.1* Certification of Marc C.

13 unchanged sentences

104** Cover Page Interactive Data File

† Denotes a management contract or compensatory plan contract or arrangement.

* Filed herewith.

3 unchanged sentences

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

November 9, 2020

COLONY CAPITAL, INC.

2 unchanged sentences

Chief Financial Officer (Principal Financial Officer)

/s/ Neale Redington

Neale Redington

/s/ Sonia Kim

Chief Accounting Officer (Principal Accounting Officer)

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-Q

Item 5. Other Information