MAIL STOP 3628
August 2, 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/A
Filed on July 28, 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 your response to prior comment 1. We have reviewed
your arguments as to why it was appropriate for RF Micro Devices to
file its proxy statement in definitive form, but we do not agree
with the analysis and conclusion set forth in your response letter.
Although Rule 14a-6(a)(4) provides that a registrant is not required
to file a preliminary proxy statement for the approval or ratification
of a stock plan or amendment to such plan, telephone interpretation
N.10 of the July 1997 Division`s Manual of Publicly Available
Telephone Interpretations states that Rule 14a-6(a)(4) does not
extend to the ratification or approval by security holders of awards
made pursuant to such plans. Since shareholders are being asked to
approve a proposed exchange of outstanding stock options for new
options, we view this proposal as tantamount to the ratification
or approval of the repricing of grants, and effectively, awards to
be made under the 2003 Plan. Therefore, we continue to believe that
the filing of a preliminary proxy statement was required pursuant to
the telephone interpretation referenced above. The staff comment
described above remains outstanding.
Offer to Exchange
General
2. We refer you to your response to prior comment 5. Although you
state that you have revised your disclosure on pages 1, 4 and 14
to comply with our comment, it does not appear that your amended
offer to exchange includes these changes. You continue to disclose
throughout your document, including your cover page and pages 1, 4
and 14, that the board of directors retains the authority, in its
sole discretion, to terminate 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.
3. We refer you to prior comment 6. You continue to reference
your right to "postpone" the offer. If you continue to include
this language, please revise to clarify what you mean. For example,
are you using this term to mean extension of the offer? Please note
that you may not postpone or otherwise delay payment subsequent to
expiration other than in anticipation of receiving necessary
governmental approvals.
4. We note your response to prior comment 7. We continue to
believe that you should revise your offer to purchase to include
all of the information required by Item 1010(c) of Regulation M-A,
including the ratio of earnings to fixed charges and book value per
share. In this regard, since 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 you provide a complete
summary of that information be disseminated to note holders.
Instruction 6 to Item 10 of Schedule TO and Regulation M-A
telephone interpretation H.7 from the July 2001 Supplement
specifically states that a bidder may not omit summarized financial
information from the document disseminated to security holders if
it incorporates financial statements by reference.
Section 6. Conditions of the Offer, page 15
5. We refer you to prior comment 9. We note that you continue to
disclose 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.
6. Refer to our last comment above. We note the new language in
the last paragraph of your Conditions section, on page 16 of the
offer materials. Specifically, you state that if you waive one of
the offer conditions with respect to a specific set of circumstances,
"that condition will still apply to different or new circumstances...."
In our view, if you waive an offer condition, that condition is no
longer part of the terms of your offer; in order for that
condition to apply again in the context of the same offer, you would
have to amend the offer materials to include it again, disseminate
notice to target security holders, and extend the offer period if
necessary to allow security holders time to receive and consider
notice of the change in the offer terms. Please delete or revise
the language to the contrary on page 16.
7. We refer you to prior comment 10. We believe that a tender
offer may be conditioned on a variety of events and circumstances,
provided that they are not within the direct or indirect control of
the offeror, and are drafted with sufficient specificity to allow for
objective verification that the conditions have been satisfied.
Currently, the financing condition under subsection (d)(i)
continues to have an excessive subjective element. We suggest that
you revise this condition to clarify that the company will make
such a determination in its "reasonable discretion" or "reasonable
judgment."
Election Form
8. We reissue prior comment 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." Unless
required by state law, 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 or advise if this language is required by
state law. To the extent that you have already circulated the Election
Form to security holders, please confirm that you will not utilize the
referenced language set forth in this form as a waiver of
liability against security holders.
Closing
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