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August 28, 2020
Via E-Mail
Tiffany Posil
David W. Bonser
Hogan Lovells LLP
555 13th Street NW
Washington, DC 20004-1109
Re: Colony Capital, Inc.
Schedule TO-I filed on August 27, 2020
File No. 5-89832
Dear Ms. Posil and Mr. Bonser:
The Office of Mergers and Acquisitions has conducted a limited review
of the filing
listed above. Our review was limited to the issues identified in our comments
below. All
defined terms have the same meaning as in the Offer to Purchase included as
Exhibit 99(A)(1)(i)
to the Schedule TO-I filed on August 27, 2020.
Please respond to this letter by revising your filing, by providing the
requested
information, or by advising us when you will provide the requested response. If
you do not
believe our comments apply to your facts and circumstances or do not believe an
amendment is
appropriate, please tell us why in your response.
After reviewing any amendment to your filing and the information you
provide in
response to these comments, we may have additional comments.
Schedule TO-I filed August 27, 2020
Exhibit 99(A)(1)(i) Offer to Purchase
Cover Page
1. Refer to the first full paragraph on the cover page, which discloses the
Expiration Time
for the Offer with the caveat that the Offer could be earlier
terminated in the Company s
sole discretion. Since the Offer period is exactly 20 U.S. business
days, as required by
Rule 13e-4(f)(1)(i), it is not clear how the Company could terminate it
earlier, unless
Tiffany Posil, Esq.
David W. Bonser, Esq.
Hogan Lovells LLP
August 28, 2020
Page 2
Tiffany Posil, Esq.
David W. Bonser, Esq.
Hogan Lovells LLP
August 28, 2020
Page 3
pursuant to the failure of a listed Offer condition, which would not
appear to be in the
issuer s sole discretion. Please revise or advise.
2. On the cover page and elsewhere in the Offer to Purchase, you
characterize the Offer as
being open to all holders of record of Convertible Notes. Also, on
page iv, you state
[o]nly Holders i.e., record owners, as reflected in the Company
s registry of ownership
are entitled to tender Convertible Notes. However, it appears from
disclosure later in
the Offer to Purchase that the Offer is open to beneficial holders as
well, but they must
tender through their record holder nominee. In future filings, avoid
statements such as
these that the Offer is only open to record holders, which may be
confusing and would
violate the all-holders provisions of Rule 13e-4.
Determination of Validity, page 12
3. You state that the Company reserves the right to reject any tenders that
acceptance of or
payment for may upon the advice of counsel for the Company, be
unlawful. Please
clarify the circumstances under which the Company could reject tenders,
other than for
defects in such tenders, consistent with Rule 13e-4(f)(8)(i). See also,
comment 9 below.
Conditions to the Offer, page 15
4. On page 16, briefly expand to describe what kinds of events could trigger
an escalation
of the impacts of the recent CVID-19 viral outbreak so that Holders
can understand the
scope of this condition.
5. On page 16, quantify what would constitute a material change in United
States or any
other currency exchange rates for purposes of this Offer condition,
including when and
as of what date such change would be measured.
6. See our last comment above. We note that as currently drafted, a material
change in any
global currency exchange rate in any global currency would appear to
trigger your Offer
condition. As such, this condition appears to be very broad and not
necessarily tied to the
Company or its business or any material impact, whether negative or
positive, on the
same. Confirm in your response letter that this is your intention, or
consider revising.
7. In the same condition, clarify what is meant by a limitation on currency
markets.
8. All Offer conditions must be objective and outside the control of the
Company.
Reserving the right to assert an Offer condition in the Company s
sole discretion raises
concerns of an illusory offer. Similarly, stating that an Offer condition
may be asserted
regardless of the circumstances giving rise to any such condition
raises the possibility
that the Company s own actions or inaction could trigger a listed
Offer condition.
Tiffany Posil, Esq.
David W. Bonser, Esq.
Hogan Lovells LLP
August 28, 2020
Page 4
Please revise the language in the second full paragraph on page 17 to
address these
concerns regarding an illusory offer.
Other Material Information, page 27
9. Refer to the statement in this section indicating that tenders may not be
accepted from
Holders in certain jurisdiction. While Offer materials need not be
disseminated into
jurisdictions where it is impermissible to do so, please revise this
statement to remove the
implication that tendered Notes will not be accepted from all Holders.
Refer to Rule 13e-
4(f)(8)(i) and Section II.G.1 of Securities Exchange Act Release No.
58597 (September
19, 2008). Alternatively, please revise the statement to limit the
restriction to only U.S.
states instead of all jurisdictions to conform to the regulatory text in
Rule 13e-4(f)(9)(ii).
Please make corresponding changes throughout the offer to purchase where
such
language appears.
We remind you that the issuer is responsible for the accuracy and adequacy
of its disclosures,
notwithstanding any review, comments, action or absence of action by the staff.
Please contact
me at (202) 551- 3263 with any questions about these comments.
Sincerely,
/s/ Christina Chalk
Christina Chalk
Senior Special Counsel
Office of Mergers and
Acquisitions