MAIL STOP 3628
July 26, 2005
By Facsimile (704) 338-7836 and U.S. Mail
Robert A. Bruggeworth
President and Chief Executive Officer
RF Micro Devices, Inc.
7628 Thorndike Road
Greensboro, North Carolina 27409
Re: RF Micro Devices, Inc.
Schedule TO-I
Filed on July 11, 2005
File No. 005-52447
Dear Mr. Bruggeworth:
We have the following comments on the above referenced
filing. Please understand that the purpose of our review process
is to assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or on any other aspect
of our review. Feel free to call us at the telephone number listed
at the end of this letter.
Schedule TO-I
General
1. We note that you filed a proxy statement in definitive form on
June 14, 2005. In view of the fact that the purpose of proposal 2
is to approve a proposed exchange of outstanding stock options for
new options, please advise of the basis for your belief that RF
Micro was not required to file a preliminary proxy statement
pursuant to 14a-6(a). In this regard, explain why you believe
proposal 2 is consistent with one or more of the matters set forth
in 14a-6(a)(1)-(6).
2. Please explain in your response letter why you have not
provided the pro forma financial information required by Item
1010(b) of Regulation M-A.
3. We note the disclosure at the forepart of the document that
"[i]t is possible that modifications may be made to the terms
Offered Eligible Employees in countries outside of the United
States. . . ." In your response letter, please describe these
potential modifications and explain why they are necessary under
home country law or practice. We may have additional comments.
Offer to Exchange
General
4. We note the reference to the closing price of RF Micro`s common
stock on June 27, 2005. Please advise us as to why you refer to
this date rather than a date immediately prior to the commencement
of the offer.
5. You disclose throughout your document that the board of
directors retains the authority, in its sole discretion, to
terminate, modify, amend or postpone the Option Exchange Program
at any time prior to expiration. Although we agree that you may
retain the authority to modify or amend the Option Exchange Program
in your discretion, it is our view that you may terminate the offer
only if one of the listed offer conditions so permits. In this regard,
since you do not reference the occurrence of any listed offer condition,
this language seems to inappropriately imply that you may terminate the
offer at will, in your sole discretion, and for any reason. Please
confirm your understanding, and revise the disclosure throughout your
Offer to Exchange.
6. Throughout the offer materials, you refer to your right to
"postpone" the offer. Clarify what you mean. For example, are
you using this term to mean extension of the offer? We may have
additional comments after reviewing your response.
7. We note that you incorporate by reference the financial
information required by Item 1010(a) of Regulation M-A. Item
1010(c) of Regulation M-A requires that at least a complete summary
of that information be disseminated to note holders. See Instruction 6
to Item 10 of Schedule TO and Regulation M-A telephone interpretation
H.7 available at www.sec.gov in the July 2001 Supplement to the
Division of Corporation Finance`s Manual of Publicly Available
Telephone Interpretations. We note that you provide summary
financial information in Schedule A to your Offer to Exchange.
However, it appears that you have not provided all of the summary
financial information required. For example, we were unable to
locate the ratio of earnings to fixed charges and the book value
per share required by Item 1010(c)(4) and (5), respectively.
Please revise your Offer to Exchange or advise.
Risk Factors, page 9
8. On page 10, you advise that option holders who do not
"affirmatively decline" participation in the Option Exchange
Program (versus those who simply do not participate) may be
adversely affected by the offer. Please clarify how option
holders "affirmatively decline" the offer.
Section 6. Conditions of the Offer, page 15
9. We refer you to the disclosure in the last paragraph of this
section that your failure at any time to exercise any of the offer
conditions will not be deemed a waiver of such conditions. This
language suggests that even once a condition is triggered, the
company can decide whether it is advisable to proceed with the
offer. We agree. However, when a condition is triggered and the
company decides to proceed with the offer anyway, we believe that
this constitutes a waiver of the triggered condition(s). You may not
rely on this language to tacitly waive a condition of the offer by
failing to assert it. Please revise.
10. While you may condition your tender offer on any number of
conditions, those conditions must be clearly and specifically
described in your offer materials and must be outside of your
control. We are concerned that some of the listed offer
conditions are so broadly drafted as to potentially render this
offer illusory, and to make it impossible for a security holder to
determine what events or occurrences will allow you to terminate it.
Please generally revise to narrow your conditions, quantifying where
possible. The following are examples of offer conditions which we
believe are problematic because of their breadth or lack of
specificity; however, these examples are not intended to be an
exhaustive, and we urge you to examine and revise this section
generally:
(c)(iv) Quantify a material and adverse affect on your financial
condition, income and operations.
(d) This condition is so broadly drafted as to essentially
allow you to assert it under any circumstances. Also, this
condition appears to allow you to terminate the offer based on
voluntary actions by the company. For example, RF Micro may assert
this offer condition if there is "any change or changes in [its]
business, condition (financial or otherwise), assets, operations,
prospects or share ownership." Further, you refer to governmental
or legal action or proceeding, law or regulation that may be material
to RF Micro. This language appears to include both positive and
negative effects on the business, and may be so broad as to render
the offer illusory.
Section 17. Forward-Looking Statements, page 24
11. Refer to the last sentence in this section. Your disclaimer
of any obligation to update disclosure in the offer materials is
inconsistent with your obligation to due so under Rule 13e-
4(c)(3). Please delete.
Election Form
12. We note your request that the security holder acknowledge that
they have "read the Offer to Exchange" and "understand that
participation in the Option Exchange Program has certain risks and
uncertainties." It is not appropriate to require security holders
to attest to the fact that they "read" or "understand" the terms of
the offer as such language effectively operates as a waiver of
liability. Please delete this and other similar language throughout
these materials.
Closing
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be certain that they have provided all information investors require
for an informed decision. Since the issuer is in possession of all
facts relating to its disclosure, it is responsible for the accuracy
and adequacy of the disclosures it has made.
In connection with responding to our comments, please
provide, in writing, a statement from RF Micro acknowledging that:
* the issuer is responsible for the adequacy and accuracy of the
disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the issuer may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of
Enforcement has access to all information you provide to the staff
of the Division of Corporation Finance in our review of your filing
or in response to our comments on your filing.
As appropriate, please amend your document in response to
these comments. You may wish to provide us with marked copies of the
amendment, if required, to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested information. Detailed cover
letters greatly facilitate our review.
Please file your cover letter on EDGAR. Please understand
that we may have additional comments after reviewing your amendment
and responses to our comments. In addition, depending upon your
response to these comments, a supplement may need to be sent to
security holders.
Please direct any questions to me at (202) 551-3456. You
may also contact me via facsimile at (202) 772-9203.
Very truly yours,
Jeffrey B. Werbitt
Attorney-Advisor
Office of Mergers & Acquisitions
cc: Ross H. Parr, Esquire
Womble Carlyle Sandridge & Rice, PLLC
3500 One Wachovia Center
301 South College Street
Charlotte, North Carolina 28202-6037