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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-Q
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 26, 1999
COMMISSION FILE NUMBER: 0-22511
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RF MICRO DEVICES, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
NORTH CAROLINA 56-1733461
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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7625 THORNDIKE ROAD
GREENSBORO, NORTH CAROLINA 27409-9421
(Address of principal executive offices, including zip code)
(336) 664-1233
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
As of August 5, 1999, there were 39,609,741 shares of the registrant's
common stock outstanding.
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RF MICRO DEVICES, INC.
INDEX
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PAGE
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Part I. FINANCIAL INFORMATION
Item 1. Financial Statements.............................. 1
Condensed Statements of Income -- Three months ended
June 30, 1999 and 1998................................ 1
Condensed Balance Sheets -- June 30, 1999 and March 31,
1999.................................................. 2
Condensed Statements of Cash Flows -- Three months
ended June 30, 1999 and 1998.......................... 3
Notes to Condensed Financial Statements................ 4
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations.................... 6
Part II. OTHER INFORMATION
Item 5. Other Information................................. 11
Item 6. Exhibits and Reports on Form 8-K.................. 11
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PART I
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
RF MICRO DEVICES, INC.
CONDENSED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
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<CAPTION>
THREE MONTHS ENDED
-----------------------------
JUNE 30, 1999 JUNE 30, 1998
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Revenues:
Product sales............................................. $61,881 $23,249
Engineering revenue....................................... 167 192
------- -------
Total revenues.............................................. 62,048 23,441
Operating costs and expenses:
Cost of goods sold........................................ 35,645 15,603
Research and development.................................. 6,038 2,777
Marketing and selling..................................... 3,632 2,176
General and administrative................................ 1,907 868
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Total operating costs and expenses.......................... 47,222 21,424
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Income from operations...................................... 14,826 2,017
Other income, net........................................... 1,202 156
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Income before income taxes.................................. 16,028 2,173
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Income tax expense.......................................... 5,610 500
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Net income........................................ $10,418 $ 1,673
======= =======
Earnings per share:
Basic..................................................... $ .26 $ . 05
Diluted................................................... $ .25 $ .05
Shares used in per share calculation:
Basic..................................................... 39,460 32,130
Diluted................................................... 42,334 34,132
</TABLE>
See accompanying notes to Condensed Financial Statements.
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RF MICRO DEVICES, INC.
CONDENSED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
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<CAPTION>
JUNE 30, MARCH 31,
1999 1999
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(UNAUDITED) (AUDITED)
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ASSETS
Current assets:
Cash and cash equivalents................................. $124,930 $147,545
Accounts receivable, net.................................. 32,994 23,697
Inventories............................................... 28,560 27,335
Current deferred tax asset................................ 900 898
Other current assets...................................... 229 243
-------- --------
Total current assets.............................. 187,613 199,718
Property and equipment, net................................. 92,452 67,431
Technology license.......................................... 3,024 3,078
Restricted cash............................................. 3,860 3,860
Non-current deferred tax asset.............................. 1,088 1,088
Other assets................................................ 582 583
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Total assets...................................... $288,619 $275,758
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LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued liabilities.................. $ 25,400 $ 24,700
Income taxes payable...................................... 5,289 2,854
Current obligations under capital leases.................. 4,277 4,246
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Total current liabilities......................... 34,966 31,800
Obligations under capital leases, less current maturities... 11,556 12,587
Non-current deferred tax liability.......................... 465 465
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Total liabilities................................. 46,987 44,852
Shareholders' equity:
Preferred stock, no par value; 5,000,000 shares
authorized; no shares issued and outstanding........... -- --
Common stock, no par value; 50,000,000 shares authorized;
39,505,578 and 32,247,922 issued and outstanding at
June 30, 1999 and March 31, 1999, respectively......... 225,038 224,746
Deferred compensation....................................... (150) (165)
Retained earnings........................................... 16,744 6,325
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Total shareholders' equity........................ 241,632 230,906
-------- --------
Total liabilities and shareholders' equity........ $288,619 $275,758
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</TABLE>
See accompanying notes to Condensed Financial Statements.
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RF MICRO DEVICES, INC.
CONDENSED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
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<CAPTION>
THREE MONTHS ENDED
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JUNE 30, JUNE 30,
1999 1998
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CASH FLOWS FROM OPERATING ACTIVITIES:
Net income.................................................. $ 10,418 $ 1,673
Adjustments to reconcile net income to net cash provided by
(used in) operating activities:
Depreciation and amortization............................. 2,854 241
Amortization of deferred compensation..................... 15 --
Change in operating assets and liabilities:
(Increase) decrease in:
Accounts receivable.................................... (9,297) (5,826)
Inventories............................................ (1,225) 530
Current deferred tax asset............................. (2) --
Non-current deferred tax asset......................... 14 --
Other assets........................................... -- (147)
Accounts payable....................................... 2,168 (2,124)
Accrued liabilities.................................... (1,468) 4,852
Income taxes payable................................... 2,435 500
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Net cash provided by (used in) operating
activities....................................... 5,912 (301)
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of capital equipment/leasehold improvements........ (27,821) (5,836)
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Net cash used in investing activities............. (27,821) (5,836)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from exercise of options........................... 294 --
Repayment of capital lease obligations...................... (1,000) (771)
-------- --------
Net cash used in financing activities............. (706) (771)
-------- --------
Net decrease in cash and cash equivalents................... (22,615) (6,908)
Cash and cash equivalents at the beginning of the period.... 147,545 16,360
-------- --------
Cash and cash equivalents at the end of the period.......... $124,930 $ 9,452
======== ========
</TABLE>
See accompanying notes to Condensed Financial Statements.
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RF MICRO DEVICES, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS (UNAUDITED)
1. BASIS OF PRESENTATION
The accompanying financial statements have been prepared in conformity with
generally accepted accounting principles. However, certain information or
footnote disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been condensed, or
omitted, pursuant to the rules and regulations of the Securities and Exchange
Commission. In the opinion of management, the statements include all adjustments
(which are of a normal and recurring nature) necessary for the fair presentation
of the results of the interim periods presented. These financial statements
should be read in conjunction with the Company's audited financial statements
for the year ended March 31, 1999.
The Company uses a 52- or 53-week fiscal year ending on the Saturday
closest to March 31 of each year. The Company's other fiscal quarters end on the
Saturday closest to June 30, September 30, and December 31 of each year. For
purposes of this report (including the Unaudited Condensed Financial Statements
included herein), each fiscal year is described as having ended on March 31, and
each of the first three quarters of each fiscal year is described as having
ended on June 30, September 30 and December 31.
On March 31, 1999, the Company effected a 2-for-1 stock split by means of a
100% stock dividend pursuant to which the Company's shareholders of record on
March 17, 1999 were issued a certificate representing one additional share of
the Company's common stock for each existing share. All earnings per share and
share count information has been restated to reflect the impact of the stock
split.
2. RESEARCH AND DEVELOPMENT COSTS
The Company charges all research and development costs to expense as
incurred.
3. INCOME TAXES
The provision for income taxes has been recorded based on the current
estimate of the Company's annual effective tax rate. For periods with taxable
income, this rate differs from the federal statutory rate primarily because of
the utilization of net operating loss carryforwards.
4. INVENTORIES
The components of inventories are as follows (in thousands):
<TABLE>
<CAPTION>
JUNE 30, MARCH 31,
1999 1999
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<S> <C> <C>
Raw materials............................................... $ 9,990 $ 6,628
Work in process............................................. 18,184 18,118
Finished goods.............................................. 7,735 6,975
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35,909 31,721
Inventory allowances........................................ (7,349) (4,386)
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Total inventory................................... $28,560 $27,335
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</TABLE>
5. NET INCOME PER SHARE
In 1997, the Financial Accounting Standards Board ("FASB") issued Statement
No. 128, "Earnings Per Share" ("SFAS 128"). SFAS 128 replaced the calculation of
primary and diluted earnings per share with basic and diluted earnings per
share. Unlike primary earnings per share, basic earnings per share excludes any
dilutive effects of options, warrants, and convertible securities, and only
reflects actual common shares outstanding. Diluted earnings per share is similar
to the previously reported fully diluted earnings per share. All earnings per
share amounts for all periods have been presented, and where appropriate,
restated to conform to SFAS 128 requirements.
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RF MICRO DEVICES, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
The following table sets forth the computation of basic and diluted net
income per share (in thousands, except per share data):
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<CAPTION>
THREE MONTHS ENDED
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JUNE 30, JUNE 30,
1999 1998
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Numerator for basic and diluted net income per share:
Net income.................................................. $10,418 $ 1,673
Denominator:
Denominator for basic net income per share -- Weighted
average shares............................................ 39,460 32,130
Effect of dilutive securities:
Employee stock options...................................... 2,874 2,002
Denominator for diluted net income per share -- adjusted
weighted average shares and assumed conversions........... 42,334 34,132
Basic net income per share.................................. $ 0.26 $ 0.05
Diluted net income per share................................ $ 0.25 $ 0.05
</TABLE>
6. SUBSEQUENT EVENTS
On July 20, 1999, the Company announced a two-for-one split of its common
stock to be effected by a 100% stock dividend pursuant to which the Company's
shareholders of record on August 2, 1999 will receive, on or around August 18,
1999, one additional share of common stock for each share of common stock held
on such record date. The effect of such stock split on earnings per share and
share count information will be reflected in the Company's September 30, 1999
Quarterly Report on Form 10-Q.
On July 27, 1999, the shareholders approved the Company's Board of
Directors' proposal to amend and restate the Articles of Incorporation to
increase the Company's authorized common stock from 50,000,000 shares to
150,000,000 shares.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
INTRODUCTION
We design, develop, manufacture and market proprietary radio frequency
integrated circuits, or RFICs, for wireless communications applications such as
cellular and personal communication services, cordless telephony, wireless local
area networks, wireless local loop, industrial radios, wireless security and
remote meter reading. We offer a broad array of products -- including
amplifiers, mixers, modulators/demodulators and single chip transmitters,
receivers and transceivers -- that represent a substantial majority of the RFICs
required in wireless subscriber equipment. We design and offer products using
three distinct process technologies: gallium arsenide heterojunction bipolar
transistor, or GaAs HBT; silicon bipolar transistor; and, to a lesser extent,
gallium arsenide metal semiconductor field effect transistor, or GaAs MESFET. We
have also recently begun to design products using the silicon germanium process
technology.
We began manufacturing our own GaAs HBT products at our new wafer
fabrication facility in September 1998, and we are now concentrating our efforts
on increasing our manufacturing capacity to satisfy customer demand for GaAs HBT
products, which is currently greater than we can meet. Before September 1998,
TRW Inc., which is our largest shareholder, manufactured all of our GaAs HBT
products. TRW has granted us a perpetual non-royalty bearing license to use its
GaAs HBT process to design and manufacture products for commercial wireless
applications. Our GaAs HBT power amplifiers and small signal devices have been
designed into advanced subscriber equipment made by leading original equipment
manufacturers, or OEMs, such as Nokia Mobile Phones Ltd., LG Information and
Communications, Ltd., Hyundai Electronics Industries Co. Ltd., Samsung
Electronics Co., Ltd., and Motorola, Inc. Through a delivery strategy called
Optimum Technology Matching(R), we also offer silicon and GaAs MESFET components
to complement our GaAs HBT products. Optimum Technology Matching(R) allows us to
offer RFIC solutions, on a component-by-component basis, that best fulfill OEMs'
performance, cost and time-to-market requirements.
RESULTS OF OPERATIONS
The following table sets forth our statement of operations data expressed
as a percentage of total revenues for the periods indicated:
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THREE MONTHS ENDED
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JUNE 30, JUNE 30,
1999 1998
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Revenues.................................................... 100.0% 100.0%
Operating costs and expenses:
Cost of goods sold........................................ 57.4 66.6
Research and development.................................. 9.7 11.8
Marketing and selling..................................... 5.9 9.3
General and administrative................................ 3.1 3.7
----- -----
Total operating costs and expenses.......................... 76.1 91.4
Income from operations...................................... 23.9 8.6
Other income (expense), net................................. 1.9 .7
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Income before income taxes.................................. 25.8 9.3
Income tax expense.......................................... (9.0) (2.1)
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Net income.................................................. 16.8% 7.2%
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</TABLE>
REVENUES
Revenues increased 164.7% to $62.0 million for the three months ended June
30, 1999 from $23.4 million for the three months ended June 30, 1998. The
increase in revenues during the three months ended June 30, 1999 reflected
strong growth in both the GaAs HBT product line (a 166% increase over the first
quarter of fiscal 1999) and the silicon product line (a 175% increase over the
first quarter of fiscal 1999). One sales representative firm, Jittek, accounted
for 22.5% of the Company's revenue during the first three months of fiscal 2000.
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International shipments accounted for $26.0 million, or 42% revenues, for
the three months ended June 30, 1999, compared to $14.5 million, or 62%, for the
three months ended June 30, 1998. Sales to South Korean customers totaled $14.4
million, or 23% of revenues, compared to $2.6 million, or 11% of revenues, for
the quarter ended June 30, 1998. Although the Company experienced an increase in
sales to South Korean customers in its first fiscal quarter, this market remains
unstable and there is no assurance that this trend will continue or that the
economic instability in Asia will not have a material adverse effect on the
Company's business, financial condition, or results of operations.
GROSS PROFIT
The gross profit margin was 42.6% for the three months ended June 30, 1999
compared to 33.4% for the three months ended June 30, 1998. The increase in the
gross profit margin was primarily attributable to lower cost output from our
GaAs HBT wafer fabrication facility and lower costs on purchased wafers under
supply agreements providing for annual price reductions.
We have historically experienced significant fluctuations in gross profit
margins. In certain cases, we believe that our gross profit margins have been
significantly affected by low manufacturing, assembly and test yields, and there
can be no assurance that future operating results will not be similarly
affected. We currently expect our gross profit margins to continue to improve as
an increasing percentage of our GaAs HBT products are fabricated at our wafer
fabrication facility, where production costs per wafer are anticipated to be
lower; however there can be no assurance that this will be the case. Further, we
sell products in intensely competitive markets, and we believe that downward
pressure on average selling prices will continue to occur in the future.
RESEARCH AND DEVELOPMENT
Research and development expenses for the three months ended June 30, 1999
increased 117% to $6.0 million, compared to $2.8 million for the three months
ended June 30, 1998. These increases were primarily attributable to increased
salaries and benefits and recruiting expenses related to increased headcount,
additional spending on mask sets, and increased software expenses related to
software used in the development and design of standard and custom products.
Research and development expenses as a percentage of total revenues decreased to
9.7% for the three months ended June 30,1999 from 11.8% for the three months
ended June 30, 1998. We plan to continue to make substantial investments in
research and development and expect that such expenses will continue to increase
in absolute dollar amounts in future periods.
MARKETING AND SELLING
Marketing and selling expenses for the three months ended June 30, 1999
were $3.6 million, compared to $2.2 million for the three months ended June 30,
1998, an increase of 66.9%. These increases were primarily attributable to
increased salaries and benefits related to increased headcount and to increased
expenses associated with advertising and commissions. Marketing and selling
expenses as a percentage of revenue for the three months ended June 30, 1999
decreased to 5.9% from 9.3% for the three months ended June 30, 1998. We plan to
continue to make substantial investments in marketing and selling and expect
that such expenses will continue to increase in absolute dollar amounts in
future periods.
GENERAL AND ADMINISTRATIVE
General and administrative expenses for the three months ended June 30,
1999 were $1.9 million compared to $868,000 for the three months ended June 30,
1998, an increase of 119.7%. These increases were attributable primarily to
increased salaries and benefits related to headcount increases, and to increased
costs associated with being a public company. General and administrative
expenses as a percentage of revenues decreased to 3.1% for the three months
ended June 30, 1999 from 3.7% for the three months ended June 30, 1998.
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OTHER INCOME (EXPENSE), NET
Other income (expense), net, for the three months ended June 30, 1999
reflected a net income of $1.2 million compared to net income of $156,000 for
the three months ended June 30, 1998. The increase in other income during these
periods is attributable to increased interest income resulting from the
investment of the proceeds of our secondary stock offering completed in January
1999.
INCOME TAX EXPENSE
The effective tax rate was 35% for the three-month period ended June 30,
1999. The effective rate is less than the combined federal and state statutory
rate of approximately 40% due to the use of net operating loss carryforwards.
Income tax expense for the three months ended June 30, 1999 was approximately
$5.6 million as compared to $0.5 million for the corresponding period ended June
30, 1998.
LIQUIDITY AND CAPITAL RESOURCES
We have funded our operations to date through sales of equity and debt
securities, bank borrowings, capital equipment leases and revenues from product
sales. We completed our initial public offering in June 1997, and raised
approximately $37.6 million, net of offering expenses. In January 1999, we
completed our secondary public offering and raised approximately $133.4 million,
net of offering expenses. As of June 30, 1999, we had working capital of
approximately $152.6 million, including $124.9 million in cash and cash
equivalents. Operating activities generated $5.9 million in cash for the
three-month period ended June 30, 1999. This was primarily attributable to net
income of $10.4 million, an increase in accounts payable of $2.2 million, and an
increase in taxes payable of $2.4 million, partially offset by increases in
accounts receivable of $9.3 million and in inventories of $1.2 million. Cash
used by operating activities for the three months ended June 30, 1998 was $0.3
million. The cash used by operating activities during this period was primarily
attributable to an increase in inventories and a decrease in accounts payable,
partially offset by net income of $1.7 million and an increase in accrued
liabilities of $4.9 million.
The $27.8 million of cash used by investing activities for the three months
ended June 30, 1999 was substantially related to the purchase of $16.7 million
of capital equipment, primarily for use in our wafer fabrication facility, $8.0
million for the capitalization of construction costs for the new facility
housing our molecular beam epitaxy (MBE) wafer fabrication equipment, and $1.7
million capitalized for the construction of our new corporate headquarters. The
$5.8 million of cash used by investing activities for the three months ended
June 30, 1998 was primarily related to expenditures associated with the
construction of our GaAs HBT wafer fabrication facility and general corporate
capital equipment requirements.
The $0.7 million of cash used by financing activities for the three-month
period ended June 30, 1999 related primarily to the repayments of capital lease
obligations. The $0.8 million of cash used by financing activities for the three
months ended June 30, 1998 also related primarily to the repayment of capital
lease obligations.
At June 30, 1999, we had total long-term capital commitments of $31.5
million, with $22.1 million relating to wafer fabrication expansion and $9.4
million for general corporate requirements. The $22.1 million in long-term
capital commitments relating to the wafer fabrication facility represents
continued investment in the second phase expansion, as well as a portion of an
expected additional $48.3 million investment to increase further wafer
fabrication capacity that will consist of moving our MBE wafer starting
equipment out of the facility to a new leased location, reconfiguring the space
currently occupied by this equipment with additional wafer production equipment
and hiring additional production personnel. We believe this additional
investment in wafer fabrication capacity, which is expected to be completed by
mid-2000, will bring our total wafer production capacity to approximately 50,000
wafers per year. We expect to fund this investment through a combination of
existing cash on hand and capital leases.
Additionally, our board of directors recently approved commencement of
construction of a new wafer fabrication facility near our existing GaAs HBT
facility. The full capacity output of the first phase of this facility is
anticipated to be the equivalent of approximately 60,000 four-inch wafers and is
projected to be
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completed and begin production wafer output in late 2000. An anticipated second
phase of construction, which is expected to be completed near the end of 2001,
would increase the facility's total output to the equivalent of 210,000
four-inch wafers per year. The projected cost for this facility is approximately
$110 million for the first phase and $140 million for the second phase. We are
currently exploring various financing alternatives. In connection with our
investment in wafer fabrication capacity, state and local governments have
awarded us a series of incentives that approximate $5.5 million payable over a
one- to four-year period. We expect to use these incentives to fund future
capital investment.
We currently have eight capital lease facilities with four equipment
financing companies under which we have financed the cost of capital equipment
and leasehold improvements associated with our wafer fabrication facility. We
have financed an aggregate of $23.4 million of leased property under these
facilities. Lease terms range from 36 months to 60 months with effective
interest factors ranging from 8.6% to 11.1%. At June 30, 1999, the minimum
future lease payments under these leases (excluding interest) were $15.8
million.
We believe that the aggregate net proceeds from the follow-on public
offering, along with cash generated from operations and new financing
arrangements as described above, will be sufficient to meet our capital
requirements for at least the next 12 months. Nonetheless, we may elect to sell
additional equity securities or to obtain additional credit facilities. Our
future capital requirements may differ materially from those currently
anticipated and will depend on many factors, including, but not limited to,
market acceptance of our products, volume pricing concessions, capital
improvements to new and existing facilities, technological advances and our
relationships with suppliers and customers. In addition, we may require
increased working capital to accommodate planned growth. In the event that the
funds generated by the follow-on offering, together with existing resources and
cash from operations, are not sufficient to meet our future requirements, we may
seek additional debt or equity financing. There can be no assurance that any
additional equity financing will not be dilutive to the holders of our common
stock. Further, there can be no assurance that additional equity or debt
financing, if required, will be available on acceptable terms or at all.
YEAR 2000 ISSUES
We have evaluated all of our internal software and current products against
Year 2000 concerns, and believe that our products and business will not be
substantially affected by the advent of the year 2000 and that we have no
significant exposure to liabilities related to the Year 2000 issue for the
products we have sold. We have also completed a project to upgrade all internal
software and to conduct testing on both our information technology systems and
our other equipment and machinery to further ensure that all aspects of our
business will be Year 2000 compliant. These procedures have not had any material
effect on our customers and have not required any material expenditure or other
material diversion of resources.
We have contacted substantially all parties with which we have material
relationships, including TRW and Nokia and our other material customers and
suppliers, to try to determine their Year 2000 preparedness and to analyze the
risk to us if they have significant business interruptions because of Year 2000
noncompliance. Based on this survey, we believe that these parties either are
substantially Year 2000 compliant or that any noncompliance will not have a
material effect on our operations. We intend to continue analyzing third-party
preparedness and the need for any related contingency planning as we enter into
new third-party relationships.
Although we believe our planning efforts are adequate to address our Year
2000 concerns, we cannot be sure that we will not experience negative
consequences and material costs caused by undetected errors or defects in the
technology used in our internal systems, or that the systems of other parties on
which we rely will be made compliant on a timely basis and will not have any
material adverse effect on us. At this time, we are unable to estimate the most
reasonably likely worst-case effects of the arrival of the year 2000 and we do
not have a contingency plan for any unanticipated negative effects. We are in
the process of analyzing reasonably likely worst-case scenarios and the need for
contingency planning and expect to complete this analysis by October 31, 1999.
The total cost related to the Year 2000 issue is expected to be $150,000,
which has been included in our information technology expense budget. As of June
30, 1999, this project is essentially complete, except as
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noted above. To date, there have been no material deferments of other
information technology projects resulting from the work taking place on our Year
2000 program.
RISKS AND UNCERTAINTIES
The preceding Management's Discussion and Analysis of Financial Condition
and Results of Operations contains forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934 that relate to our future plans, objectives, estimates and
goals. Words such as "expects," "anticipates," "intends," "plans," "believes,"
and "estimates," and variations of such words and similar expressions identify
such forward-looking statements. Our business is subject to numerous risks and
uncertainties, including probable variability in our quarterly operating
results, manufacturing capacity constraints, risks associated with our operation
of a wafer fabrication facility, dependence on a limited number of customers,
variability in production yields, our ability to manage rapid growth, dependence
on third parties and risks associated with doing business in Asia and other
areas of the world. These and other risks and uncertainties, which are described
in more detail in our Annual Report on Form 10-K filed with the Securities and
Exchange Commission, could cause actual results and developments to be
materially different from those expressed or implied by any of these
forward-looking statements.
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PART II
OTHER INFORMATION
ITEM 5. OTHER INFORMATION
On July 20, 1999, we announced a two-for-one split of our common stock to
be effected by a 100% stock dividend pursuant to which our shareholders of
record on August 2, 1999 will receive, on or around August 18, 1999, one
additional share of common stock for each share of common stock held on such
record date.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
<TABLE>
<S> <C> <C>
Exhibit 3.1 -- Amended and Restated Articles of Incorporation of RF Micro
Devices, Inc.
Exhibit 10.1 -- Lease dated May 25, 1999, between RF Micro Devices, Inc. and
CK Deep River, LLC
Exhibit 27.1 -- Financial Data Schedule
</TABLE>
(b) Report on Form 8-K
The Company did not file any reports on Form 8-K during the three months
ended June 30, 1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
RF Micro Devices, Inc.
/s/ DAVID A. NORBURY
--------------------------------------
David A. Norbury
President and Chief Executive Officer
(Principal Executive Officer)
Dated: August 10, 1999
/s/ WILLIAM A. PRIDDY, JR.
--------------------------------------
William A. Priddy, Jr.
Vice President, Finance and
Administration
and Chief Financial Officer
(Principal Financial and Accounting
Officer)
Dated: August 10, 1999
12
<PAGE> 1
ARTICLES OF RESTATEMENT OF
RF MICRO DEVICES, INC.
The undersigned corporation hereby submits these Articles of
Restatement for the purpose of integrating into one document its original
articles of incorporation and all amendments thereto and also for the purpose of
amending its articles of incorporation:
1. The name of the corporation is RF Micro Devices, Inc.
2. Attached hereto as Exhibit A are Restated Articles of Incorporation,
which contain amendments to the Articles of Incorporation requiring
shareholder approval.
3. The Restated Articles of Incorporation of the corporation were adopted
by its shareholders on the 27th day of July, 1999, in the manner
prescribed by Chapter 55 of the North Carolina General Statutes.
This the 27th day of July, 1999.
RF MICRO DEVICES, INC.
By: /s/ David A. Norbury
-------------------------------------
David A. Norbury, President
and Chief Executive Officer
<PAGE> 2
EXHIBIT A
RESTATED ARTICLES OF INCORPORATION
OF
RF MICRO DEVICES, INC.
-------------------------
Pursuant to Section 55-10-07 of the North Carolina General Statutes, RF
Micro Devices, Inc. (the "Corporation") hereby submits the following for the
purpose of amending and restating its articles of incorporation.
1. The name of the Corporation is RF Micro Devices, Inc.
2. Capitalization.
(a) Authorized Shares. The number of shares of stock that the
Corporation shall have authority to issue is (i) 150,000,000 shares of
Common Stock, no par value (the "Common Stock") and (ii) 5,000,000
shares of one or more classes of preferred stock, no par value, to be
established by the Board of Directors of the Corporation as provided
herein (the "Preferred Stock") or one or more series within a class so
established.
(b) Preferred Stock. The Board of Directors is expressly
authorized to establish one or more classes of Preferred Stock or one
or more series within a class of Preferred Stock by fixing and
determining the preferences, limitations and relative rights, including
dividend, liquidation, conversion, voting, redemption and other rights,
preferences and limitations of the class or series of shares so
established, as shall be stated and expressed in the resolution
establishing such class or series and providing for the issuance
thereof adopted by the Board of Directors pursuant to the authority so
to do that is hereby expressly vested in it including, without limiting
the generality of the foregoing, the following:
(i) the designation of such class or series;
(ii) the dividend rate, if any, thereof, the
conditions and dates upon which such dividends shall be
payable, the preference or relation of such dividends to
dividends payable on any other class or classes of capital
stock of the Corporation or series within a class, and whether
such dividends shall be cumulative or noncumulative;
(iii) whether the shares of such class or series
shall be subject to redemption by the Corporation, and, if
made subject to such redemption, the times, prices, rates,
adjustments and other terms and conditions of such redemption;
(iv) the terms and amount of any sinking or similar
fund provided for the purchase or redemption of the shares of
such class or series;
<PAGE> 3
(v) providing that the shares of such class or series
may be convertible into or exchangeable for shares of capital
stock or other securities of the Corporation or of any other
corporation and the times, prices, rates, adjustments and
other terms and conditions of such conversion or exchange;
(vi) the extent, if any, to which the holders of the
shares of such class or series shall be entitled to vote as a
class, series or otherwise with respect to the election of
directors or otherwise;
(vii) the restrictions and conditions, if any, upon
the issue or reissue of any additional Preferred Stock ranking
on a parity with or prior to such shares as to dividends or
upon dissolution;
(viii) the rights of the holders of the shares of
such class or series upon the dissolution of, or upon the
distribution of assets of, the Corporation, which rights may
be different in the case of voluntary dissolution than in the
case of involuntary dissolution; and
(ix) any other preferences, limitations or relative
rights of shares of such class or series consistent with this
Article 2 and applicable law.
3. The address of the registered office of the Corporation in the State
of North Carolina is 7625 Thorndike Road, Greensboro, Guilford County, North
Carolina 27409, and the name of its registered agent at such address is William
J. Pratt.
4. To the fullest extent permitted by applicable law, no person who is
serving or has served as a director of the Corporation shall have any personal
liability arising out of any action whether by or in the right of the
Corporation or otherwise for monetary damages for breach of any duty as
director. This Article 4 shall not impair any right to indemnity from the
Corporation that any director may now or hereafter have. Any repeal or
modification of this Article 4 shall be prospective only and shall not adversely
affect any limitation hereunder on the personal liability of a director with
respect to modification.
5. The following provisions shall govern certain business combinations
involving the Corporation. Capitalized terms used in this Article 5 and not
otherwise defined in these Articles of Incorporation shall have the meanings
ascribed to them in paragraph 5(d) hereof.
(a) Any Business Combination shall require only such
affirmative vote, if any, as is required by law and any other provision
of these Articles of Incorporation if the Business Combination shall
have been approved by at least a majority of the Continuing Directors
and, if deemed advisable by a majority of the Continuing Directors, the
Board of Directors shall have obtained an opinion of a reputable
investment banking firm to the effect that the financial terms of such
Business Combination are fair from a financial point of view to the
holders of Voting Shares (other than the Interested Shareholder).
A-2
<PAGE> 4
(b) If the provisions of paragraph 5(a) have not been
satisfied, any Business Combination shall require the affirmative vote,
in person or by proxy, at any meeting called as provided in the Bylaws,
of the holders of at least 60% in interest of the issued and
outstanding Voting Shares of the Corporation held by Persons other than
any Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified by law or in any agreement with any
national securities exchange or otherwise.
(c) The provisions of paragraphs 5(a) and 5(b) shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote, if any, as is
required by law and any other provision of these Articles of
Incorporation, if such Business Combination constitutes a transaction
between the Corporation or any Subsidiary and any corporation of which
a majority of the outstanding shares of all classes of stock entitled
to vote in elections of directors is owned of record or beneficially by
the Corporation or its Subsidiaries; provided, however, that this
paragraph 5(c) shall not apply to any transaction to which any
Affiliate of any Interested Shareholder is a party.
(d) For the purposes of these Articles of Incorporation:
(i) The term "Business Combination" shall mean any
transaction that is referred to in any one or more of clauses
(A) through (F) of this subparagraph 5(d)(i) and that occurs
at any time following the closing of a Public Offering:
(A) Any merger, share exchange or
consolidation of the Corporation or any Subsidiary
with or into (1) any Interested Shareholder or (2)
any other entity (whether or not itself an Interested
Shareholder) that immediately before is, or
immediately after such merger, share exchange or
consolidation would be, an Affiliate of an Interested
Shareholder;
(B) Any sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one
transaction or a series of related transactions) to
or with any Interested Shareholder or any Affiliate
of any Interested Shareholder of any assets of the
Corporation or any Subsidiary when such assets have
an aggregate Fair Market Value of $5,000,000 or more;
(C) The issuance or transfer to any
Interested Shareholder or any Affiliate of any
Interested Shareholder by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any equity securities of the
Corporation or any Subsidiary where such equity
securities have an aggregate Fair Market Value of
$5,000,000 or more;
(D) The adoption of any plan or proposal for
the liquidation or dissolution of the Corporation;
A-3
<PAGE> 5
(E) Any reclassification of securities
(including any reverse stock split), or
recapitalization of the Corporation, or any merger,
share exchange or consolidation of the Corporation
with or into any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Shareholder) that has the
effect, directly or indirectly, of increasing the
percentage of the outstanding shares of any class of
equity or convertible securities of the Corporation
or any Subsidiary that is directly or indirectly
owned by any Interested Shareholder or any Affiliate
of any Interested Shareholder; or
(F) Any agreement, contract or other
arrangement providing for any of the transactions
described in this definition of "Business
Combination."
(ii) A "Person" shall mean any individual, firm,
corporation, partnership, limited liability company or other
entity.
(iii) "Interested Shareholder" shall mean any Person
(other than the Corporation, any Subsidiary or a trustee
holding stock for the benefit of the employees of the
Corporation or its Subsidiaries) who or which, along with any
Affiliates and Associates of the Interested Shareholder:
(A) Is the Beneficial Owner, directly or
indirectly, of more than 15% of the Voting Shares of
the Corporation or a Subsidiary; or
(B) Is an assignee of or has otherwise
succeeded to any share of capital stock of the
Corporation or a Subsidiary that was at any time
within two years prior thereto beneficially owned by
any Interested Shareholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a
public offering within the meaning of the Securities
Act of 1933.
A Person shall be deemed an Interested Shareholder for the
purpose of this definition if such Person is an Interested
Shareholder as of the record date for the determination of
shareholders entitled to notice of and to vote on any Business
Combination, as of the date any definitive agreement relating
to a Business Combination is entered into or amended so as to
make it less favorable to the Corporation or its shareholders
other than the Interested Shareholder, or immediately prior to
the consummation of any such Business Combination.
(iv) A Person shall be the "Beneficial Owner" of any
Voting Shares:
(A) As to which such Person or any of its
Affiliates and Associates, pursuant to any agreement,
arrangement or understanding, or otherwise, has or
shares, directly or indirectly, voting power,
including the power to vote or direct
A-4
<PAGE> 6
the voting of such shares, or investment power,
including the power to dispose or to direct the
disposition of such shares, or both;
(B) That such Person or any of its
Affiliates or Associates has (1) the right to acquire
(whether such right is exercisable immediately or
only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights,
warrants or options, or otherwise or (2) the right to
vote pursuant to any agreement, arrangement or
understanding; or
(C) That are beneficially owned, directly or
indirectly, by any other Person with which such
first-mentioned Person or any of its Affiliates or
Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding,
voting or disposing of any shares of capital stock of
the Corporation or a Subsidiary, as the case may be.
(v) "Voting Shares" when used with respect to the
Corporation or a Subsidiary shall mean shares of such entity
having power to vote on the election of directors. For the
purpose of determining whether a Person is an Interested
Shareholder pursuant to subparagraph 5(d)(iii), the
outstanding Voting Shares shall include shares deemed owned by
a Beneficial Owner through application of subparagraph
5(d)(iv) but shall not include any other Voting Shares that
may be issuable to any other Person pursuant to any agreement
or upon exercise of conversion rights, warrants or options, or
otherwise.
(vi) "Affiliate" and "Associate" shall have the
respective meanings given those terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange
Act of 1934, as in effect on January 1, 1997.
(vii) "Subsidiary" shall mean any entity of which a
majority of any class of equity security (as defined in Rule
3a11-1 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on January 1,
1997) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of
Interested Shareholder set forth in subparagraph 5(d)(iii),
the term "Subsidiary" shall mean only an entity of which a
majority of each class of equity security is owned, directly
or indirectly, by the Corporation.
(viii) "Continuing Director" shall mean an individual
who was a member of the Board of Directors of the Corporation
on the date a Person became an Interested Shareholder;
provided, however, that each individual who was elected as a
member of the Board of Directors at the 1997 Annual Meeting of
the Shareholders of the Corporation shall be deemed to be a
Continuing Director with respect to any Person who was an
Interested Shareholder at or prior to April 10, 1997
notwithstanding the fact that
A-5
<PAGE> 7
he or she may have become a member of the Board of Directors
of the Corporation after the date on which such Person became
an Interested Shareholder.
(ix) "Fair Market Value" shall mean (A) in the case
of stock, the highest closing sales price during the 30-day
period immediately preceding the date in question of a share
of such stock on the Composite Tape for New York Stock
Exchange--Listed Stocks, or, if such stock is not quoted on
the Composite Tape, on the New York Stock Exchange, or, if
such stock is not listed on such Exchange, on the principal
United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed,
or, if such stock is not listed on any such exchange, as
quoted in the National Association of Securities Dealers, Inc.
Automated Quotations System (National Market System), or, if
such stock is not included in such system, the highest closing
bid quotation with respect to a share of such stock during the
30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations
System or any system then in use, or, if no such quotations
are available, the fair market value on the date in question
of a share of such stock as determined in good faith by a
majority of Continuing Directors, and (B) in the case of
property other than cash or stock, the fair market value of
such property on the date in question as determined in good
faith by a majority of Continuing Directors.
(e) The Continuing Directors, by a majority vote, shall have
the power to determine for the purposes of this Article 5 on the basis
of information known to them (i) the number of Voting Shares
beneficially owned by any Person, (ii) whether a Person is an Affiliate
or Associate of another, (iii) whether a Person has an agreement,
arrangement or understanding with another as to the matters referred to
in subparagraph 5(d)(iv), (iv) whether the assets of the Corporation or
any Subsidiary have an aggregate fair market value of $5,000,000 or
more, (v) whether the consideration received for the issuance or
transfer of securities by the Corporation or any Subsidiary has an
aggregate fair market value of $5,000,000 or more and (vi) such other
matters with respect to which a determination is necessary or
appropriate under this Article 5.
(f) Nothing contained in this Article 5 shall be construed to
relieve any Interested Shareholder from any fiduciary obligation
imposed by law.
6. Except as otherwise provided herein (and in addition to any other
vote that may be required by law, these Articles of Incorporation or the
Bylaws), following the closing of a Public Offering, the affirmative vote, in
person or by proxy, at any meeting called as provided in the Bylaws, of the
holders of at least 60% in interest of the Voting Shares of the Corporation
issued and outstanding held by Persons other than an Interested Shareholder or
any Affiliate or Associate of any Interested Shareholder shall be required to
amend, alter or repeal Articles 2, 5, 6 or 7 of these Articles of Incorporation
or Section 4 of Article II or Section 2 of Article III of the Bylaws, or to
adopt any new provision inconsistent with such provisions of these Articles of
Incorporation or the Bylaws; provided, however, that if at the time of any such
proposed amendment, alteration, repeal or adoption, (a) there shall exist one or
more Interested Shareholders and at least a majority of the Continuing Directors
approve such proposed amendment, alteration, repeal or adoption, or (b) no such
Interested Shareholder
A-6
<PAGE> 8
exists, and a majority of the members of the Board of Directors approve such
proposed amendment, alteration, repeal or adoption, then the affirmative vote,
in person or by proxy, at any meeting called as provided in the Bylaws, of the
holders of a majority in interest of the issued and outstanding Voting Shares of
the Corporation shall be required to approve such amendment, alteration, repeal
or adoption. Pursuant to Section 55-10-20(a) of the North Carolina General
Statutes, the Board of Directors may adopt, amend or repeal the Bylaws
generally, including any Bylaw adopted, amended or repealed by the shareholders
of the Corporation.
7. The provisions of Articles 9 and 9A of Chapter 55 of the North
Carolina General Statutes shall not be applicable to the Corporation.
IN WITNESS WHEREOF, these Restated Articles of Incorporation are
approved by the shareholders of the Corporation and executed by the President
and Chief Executive Officer and the Secretary of the Corporation, this 27th day
of July, 1999, and supersede and replace all Articles of Incorporation
previously filed on behalf of the Corporation and all amendments thereto.
/s/ David A. Norbury
------------------------------------
David A. Norbury, President
and Chief Executive Officer
/s/ Powell T. Seymour
------------------------------------
Powell T. Seymour, Secretary
A-7
<PAGE> 1
STANDARD WAREHOUSE LEASE AGREEMENT,
North Carolina Industrial/1998
APPROXIMATELY 76,800 SQUARE FEET
7907-A PIEDMONT TRIAD PARKWAY
GREENSBORO, NORTH CAROLINA 27419
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between CK DEEP
RIVER, LLC, hereinafter referred to as "Landlord," and RF MICRO DEVICES, INC.,
hereinafter referred to as "Tenant."
W I T N E S S E T H:
1. PREMISES AND TERM. In consideration of the obligation of Tenant to
pay rent as herein provided, and in consideration of the other terms, provisions
and covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby accepts and leases from Landlord certain Premises situated within the
County of Guilford, State of North Carolina, more particularly described on
Exhibit "A" attached hereto and incorporated herein by reference, together with
all rights, privileges, easements, appurtenances and amenities belonging to or
in any way pertaining to the Premises and together with the buildings and other
improvements situated or to be situated upon said Premises (said real property,
building and improvements being hereinafter referred to as the "Premises").
TO HAVE AND TO HOLD the same for a term commencing on the "commencement
date," as hereinafter defined, and ending one hundred eighty (180) months
thereafter; provided, however, that in the event the commencement date is a date
other than the first day of a calendar month, said term shall extend for said
number of months in addition to the remainder of the calendar month following
the commencement date.
A. The commencement date shall be May 15, 1999. Tenant acknowledges
that it has inspected and accepts the Premises, and specifically the buildings
and improvements comprising the same, in their present condition, as suitable
for the purpose for which the Premises are leased. Taking of possession by
Tenant shall be deemed conclusively to establish that said buildings and other
improvements are in good and satisfactory condition as of when possession was
taken. Tenant further acknowledges that no representations as to the repair of
the Premises, nor promises to alter, remodel or improve the Premises have been
made by Landlord, unless such are expressly set forth in this lease. If this
lease is executed before the Premises become vacant or otherwise available and
ready for occupancy, or if any present tenant or occupant of the Premises holds
over, and the Landlord cannot acquire possession of the Premises prior to said
commencement date, Landlord shall not be deemed to be in default hereunder, and
Tenant agrees to accept possession of the Premises at such time as Landlord is
able to tender the same, which date shall thenceforth be deemed the commencement
date, except that if Landlord is unable to deliver possession as Tenant by June
15, 1999, then Tenant may, at its election, terminate this Lease Agreement in
which case it shall be null and void and no longer in force or effect; and
Landlord hereby waives payment of rent covering any period prior to the
tendering of possession to Tenant hereunder. After the commencement date, the
Tenant shall, upon demand, execute and deliver to Landlord a letter of
acceptance of delivery of the Premises.
2. BASE RENT AND SECURITY DEPOSIT.
A. Tenant agrees to pay to Landlord rent for the Premises, in advance,
without demand, deduction or set off, for the entire term hereof at the rate of
Twenty Thousand Three Hundred Fifty and No/100 Dollars ($20,350.00) per month
for months one through twelve (1-12), Twenty Thousand Nine Hundred Thirty and
No/100 Dollars ($20,930.00) per month for months thirteen through twenty-four
(13-24), Twenty One Thousand Five Hundred Seventy and No/100 Dollars
($21,570.00) per month for months twenty-five through thirty-six (25-36), Twenty
Two Thousand Two Hundred
<PAGE> 2
Ten and No/100 Dollars ($22,210.00) per month for months thirty-seven through
forty-eight (37-48), Twenty Two Thousand Nine Hundred Ten and No/100 Dollars
($22,910.00) per month for months forty-nine through sixty (49-60), Twenty Three
Thousand Six Hundred Fifteen and No/100 Dollars ($23,615.00) per month for
months sixty one through one hundred twenty (61-120) and Twenty Six Thousand
Three Hundred Seventy and No/100 Dollars ($26,370.00) per month for months one
hundred twenty one through one hundred eighty (121-180). One such monthly
installment shall be due and payable on the date hereof and a like monthly
installment shall be due and payable on or before the first day of each calendar
month succeeding the commencement date recited above during the hereby demised
term, except that the rental payment for any fractional calendar month at the
commencement or end of the lease period shall be prorated.
B. In addition, Tenant agrees to deposit with Landlord on the date
hereof the sum of Twenty Thousand Three Hundred Fifty and No/100 Dollars
(20,350.00), which sum shall be held by Landlord, without obligation for
interest, as security for the performance of Tenant's covenants and obligations
under this lease, it being expressly understood and agreed that such deposit is
not an advance rental deposit or a measure of Landlord's damage in case of
Tenant's default. Upon the occurrence of any event of default by Tenant,
Landlord may, from time to time, without prejudice to any other remedy provided
herein or proved by law, use such fund to the extent necessary to make good any
arrears of rent or other payments due Landlord hereunder, and any other damage,
injury, expense or liability caused by such event of default; and Tenant shall
pay to Landlord on demand the amount so applied in order to restore the security
deposit to its original amount. Although the security deposit shall be deemed
the property of Landlord, any remaining balance of such deposit shall be
returned by Landlord to Tenant within thirty (30) days after termination of this
lease and after all of Tenant's obligations under this lease have been
fulfilled.
3. USE.
A. The demised Premises shall be used only for the purpose of general
office, receiving, storing, shipping and selling (other than retail) products,
materials and merchandise made and/or distributed by Tenant and for such other
lawful purposes as may be incidental thereto, and subject to any building or
building complex rules and regulations. Outside storage, including, without
limitation, truck and other vehicles, is prohibited without Landlord's prior
written consent. Tenant shall, at its own cost and expense, obtain any and all
licenses and permits necessary for any such use. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to the use of the
Premises, and shall promptly comply with all governmental orders and directives
for the correction, prevention and abatement of nuisances in or upon, or
connected with, the Premises, all at Tenant's sole expense. tenant shall not
permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the Premises, nor take any other action which would
constitute a nuisance or would disturb or endanger any other tenants of the
building in which their Premises are situated or unreasonably interfere with
their use of their respective Premises. Without Landlord's prior written
consent, Tenant shall not receive, store or otherwise handle any product,
material or merchandise which is explosive or highly flammable. Tenant will not
permit the Premises to be used for any purpose or in any manner (including
without limitation any method of storage) which would render the insurance
thereon void or the insurance risk more hazardous or cause the State Board of
Insurance or other insurance authority to disallow any sprinkler credits.
B. Tenant agrees that the point pressure resulting from tenant's
racking system, inventory, forklifts and equipment pertaining to tenant's use of
the Premises shall not exceed allowable design floor loading for floor slabs on
grade. Tenant shall hold harmless Landlord from any loss, liability and
expenses, both real and alleged, arising out of such damage or repair caused by
Tenant's negligence or failure to comply with this paragraph.
4. TAXES.
A. Landlord agrees to pay before they become delinquent all taxes,
assessments and governmental charges of any kind and nature whatsoever
(hereinafter collectively referred to as "taxes") lawfully levied or assessed
against the building and the grounds, parking areas, driveways and alleys around
the building; provided however, that the taxes paid by Landlord hereunder shall
be paid by Tenant to Landlord, upon demand, as additional rental. In the event
any such amount is not paid within thirty (30) days after the date of Landlord's
invoice to Tenant, the unpaid amount shall bear interest at the rate of twelve
percent (12%) per annum from the date of such invoice until payment by Tenant.
In the
2
<PAGE> 3
event the Premises constitute a portion of a multiple occupancy building, Tenant
agrees to pay to Landlord, as additional rental, upon demand, the amount of
Tenant's "proportionate share" (as defined in subparagraph 27B below) of the
taxes referred to in this subparagraph. In the event that Landlord determines in
its sole and reasonable discretion that (a) the improvements to the Premises
vary materially from the improvements to any other portion of the building(s) of
which the Premises are a part and (b) this variance reasonably justifies an
increased allocation to the Premises of the taxes payable with respect to such
building(s), Landlord may (but is under no obligation to) from time to time
adjust Tenant's proportionate share for the purposes of reimbursement of taxes
using such method(s) of allocation as Landlord may in its sole discretion deem
appropriate. Landlord reserves the right to require Tenant during each month of
the lease term to pay an escrow deposit to Landlord equal to one-twelfth of its
proportionate share of the estimated taxes. If the Tenant's total tax escrow
payments are less than Tenant's actual proportionate share of such taxes, Tenant
shall pay to Landlord upon demand the tax payment shortage; if the total tax
escrow payments of Tenant are more than Tenant's actual proportionate share of
such taxes, Landlord shall retain such excess and credit it to Tenant's next
accruing tax escrow payment.
B. If at any time during the term of this lease the present method of
taxation shall be changed so that, in lieu of the whole or any part of any
taxes, assessments or governmental charges levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received therefrom
and/or a franchise tax, assessment, levy or charge measured by or based, in
whole or in part, upon such rents for the present or any future building or
buildings on the Premises, then all such taxes, assessments, levies or charges,
or the part thereof so measured or based, shall be deemed to be included within
the term "taxes" for the purposes hereof.
C. The Landlord shall have the right to employ a tax consulting firm to
attempt to assure a fair tax burden on the building and grounds within the
applicable taxing jurisdiction. Landlord shall use reasonable efforts to obtain
such serve on a contingency fee basis where the cost of such service is less
than or equal to the amount of tax savings realized. Tenant shall pay to
Landlord within thirty (30) days of demand from time to time, as additional
rent, the amount of Tenant's proportionate share of the cost of such service.
D. Any payment to be made pursuant to this paragraph 4 with respect to
the real estate tax year in which this lease commences or terminate shall be
prorated.
5. LANDLORD'S REPAIRS AND OBLIGATIONS. Landlord shall at its expense
maintain only the roof, foundation and the structural soundness of the exterior
walls of the building in goof repair, reasonable wear and tear excepted. Tenant
shall repair and pay for any damage caused by the negligence of Tenant, or
tenant's employees, agents or invitees, or caused by Tenant's default hereunder.
The term "walls" as used herein shall not include windows, glass or plate glass,
doors, store fronts or office entries. Tenant shall immediately give Landlord
written notice of defect or need for repairs, after which Landlord shall
promptly commence to repair same or cure such defect. Landlord's liability with
respect to any defects, repairs or maintenance for which Landlord is responsible
under any of the provisions of this lease shall be limited to the cost of such
repairs or maintenance or the curing of such defect.
6. TENANT'S REPAIRS AND OBLIGATIONS.
A. Tenant shall, at its own cost and expense, keep and maintain all
parts of the Premises (except those for which Landlord is expressly responsible
under the terms of the lease) in good condition, promptly making all repairs,
repainting and replacements, including, but not limited to, windows, glass and
plate glass, doors, any office entries, interior walls and finish work, floors
and floor covering, downspouts, gutters, heating and air conditioning systems,
dock levelers, truck doors, dock bumpers, plumbing work and fixtures, termites
and pest extermination inside the building, regular removal of trash and debris.
Tenant shall not be obligated to repair any damage caused by fire, tornado or
other casualty covered by the insurance to be maintained by Landlord pursuant to
subparagraph 12A below, except that Tenant shall be obligated to repair all wind
damage to glass except with respect to tornado or hurricane damage.
B. The cost of maintenance and repair of any common party walls (any
wall, divider, partition or any other structure separating the Premises from any
adjacent Premises) shall be shared equally by the Tenant and the tenant or
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tenants occupying the adjacent Premises, unless damage is attributable to the
actions of a specific tenant in which case the responsible tenant shall bear all
costs of repair. Tenant shall not damage any demising wall or disturb the
integrity and support provided by any demising wall and shall, at its sole cost
and expense, promptly repair any damage or injury caused to any demising wall
caused by Tenant or its employees, agent or invitees.
C. In the event the Premises constitute a portion of a multiple
occupancy building, Tenant and its employees, customers and licensees shall have
the exclusive right to use the parking areas, if any, as may be designated by
Landlord in writing, subject to such reasonable rules and regulations as
Landlord may from time to time prescribe and subject to rights of ingress and
egress of other tenants. Landlord shall not be responsible for enforcing
Tenant's exclusive parking rights against any third parties.
D. Landlord shall maintain the grounds, regularly performing the mowing
of any grass, trimming, weed removal, general landscape maintenance, common
sewage line plumbing, common exterior lighting (if applicable), common dumpster
removal (if applicable) and other exterior maintenance obligations of the
building, including, but not limited to, painting, the maintenance, repair and
replacement of the parking areas, driveways, alleys and maintenance of the whole
or the Premises in a clean and sanity condition, and may provide all or any part
of Tenant's repairs and obligations under subparagraph 6A above, and Tenant
shall pay monthly as additional rent due under subparagraph 2A for its
proportionate share of the cost and expense, including reasonable overhead
(which may include commercially reasonable management fees, and pro-rata costs
of property management and maintenance personnel salaries and related supplies
and postage) and reserves only for items described in this paragraph 6;
provided, however, that Landlord shall have the right to require Tenant to pay
such other reasonable proportions of said repairs and obligations as may be
determined by Landlord and further provided that if Tenant or any other
particular tenant of the building can be clearly identified as being responsible
for obstructions or stoppage of the common sanity sewage line, then tenant, if
Tenant is responsible, shall pay the entire cost thereof, upon demand, as
additional rent. If, for any calendar year during which the Lease is in effect,
Tenant's total monthly payments made pursuant to this subparagraph are less than
tenant's actual proportionate share of such repair obligations, Tenant shall pay
to Landlord upon demand the payment shortage. If the total monthly payments are
more than Tenant's actual proportionate share of such repairs and obligations,
Landlord shall retain such excess and credit it to Tenant's next accruing
monthly payment for such repairs and obligations.
E. If applicable and if the Premises constitute a portion of a multiple
occupancy building, Landlord shall have the right to coordinate any repairs and
other maintenance of any rail tracks serving the building and if tenant uses
such rail tracks, Tenant shall reimburse Landlord from time to time upon demand,
as additional rent, for a share of the costs of such repairs and maintenance and
any other sums specified in any agreement to which Landlord is a party
respecting such tracks, such share to be a fraction, the numerator of which is
the space contained in the Premises, and the denominator of which is the entire
space occupied by rail users in the building.
F. Tenant shall, at its own cost and expense, enter into a quarterly
schedule preventive maintenance/service contract with a maintenance contractor
for servicing all hot water, heating and air conditioning systems and equipment
within the Premises. The maintenance contractor and the contract must be
approved by Landlord. Landlord may, at its option, enter into such maintenance
agreement, and Tenant will pay to Landlord, as additional rent, for the cost of
such contract. The service contract must include all services suggested by the
equipment manufacturer within the operation/maintenance manual and must become
effective (and a copy thereof delivered to the Landlord) within thirty (30) days
of the date Tenant takes possession of the Premises.
7. ALTERATIONS. Tenants shall not make any alternations, additions or
improvements to the Premises (including, but not limited to, roof and wall
penetrations) without the prior written consent of Landlord, which consent shall
not be unreasonably withheld. In the event Landlord consents to the making of
any such alternations, additions or improvements by Tenant, the same shall be
made by Tenant, at Tenant's sole cost and expense, in accordance with all
applicable laws, ordinances and regulations, and all requirements of Landlord's
and Tenant's insurance policies and only in accordance with plans and
specifications approved by Landlord; and any contractor or person selected by
Tenant to make the same, and all subcontractors must first be approved in
writing by Landlord. Tenant may, without the consent of Landlord, but at its own
cost and expense and in good workmanlike manner erect such shelves, bins,
machinery and
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trade fixtures as it may deem advisable, without altering the basic character of
the building or improvements and without overloading or damaging such building
or improvements, and in each case complying with all applicable governmental
laws, ordinances, regulations and other requirements. All alterations,
additions, improvements and partitions erected by Tenant shall be and remain the
property of Tenant during the term of this lease and Tenant shall, unless
Landlord otherwise elects as hereinafter provided, remove all alterations,
additions, improvements and partitions erected by Tenant and restore the
Premises to their original condition by the date of termination of this lease or
upon earlier vacating of the Premises; provided, however, that if Landlord so
elects prior to termination of this lease or upon earlier vacating of the
Premises, such alterations, additions, improvements and partitions shall become
the property of Landlord as of the date of termination of this lease or upon
earlier vacating of the Premises and shall be delivered up to the Landlord with
the Premises. Notwithstanding the foregoing sentence, all shelves, bins,
machinery and trade fixtures installed by Tenant may be removed by Tenant prior
to the termination of this lease if Tenant so elects, and shall be removed by
the date of termination of this lease or upon earlier vacating of the Premises
if required by Landlord. Upon any such removal Tenant shall restore the Premises
to their original condition. All such removals and restorations shall be
accomplished in good workmanlike manner so as not to damage the primary
structure of structural qualities of the building and other improvements
situated on the Premises.
8. SIGNS. Tenant agrees to conform to Landlord's signage program for
the building; however, all costs and expenses for the sign, sign installation,
removal and repair shall be paid by Tenant. Tenant shall have the right to
install standard signs upon the Premises only where first approved in writing by
Landlord and subject to any applicable governmental laws, ordinances,
regulations and other requirements. Tenant shall remove all signs prior to the
termination of this lease. Such installations and removals shall be made in such
a manner as to avoid injury or defacement of the building and other
improvements, and Tenant shall repair any injury or defacement, including
without limitation, discoloration caused by installation and/or removal.
9. INSPECTION AND RIGHT OF ENTRY. Landlord and Landlord's agents and
representatives shall have the right to enter the Premises at any time in the
event of an emergency and to enter and inspect the premises at any reasonable
time during business hours with reasonable prior notification, for the purpose
of ascertaining the condition of the Premises or in order to make such repairs
as may be required or permitted to be made by Landlord under the terms of this
lease. During the period that is six (6) months prior to the end of the term
hereof, (unless Tenant has exercised its renewal option as described under
Additional Provision #29) Landlord and Landlord's agents and representatives
shall have the right to enter the Premises at any reasonable time during
business hours for the purpose of showing the Promises, except that Landlord
agrees not to show the facilities to any competitor of Tenant, as determined by
the Tenant, without its consent, and shall have the right to erect on the
Promises a suitable sign indicating the Premises are available. Tenant shall
give notice to Landlord at least thirty (30) days prior to vacating the Premises
and shall arrange to meet with Landlord for a joint inspection of the Premises
prior to vacating. In the event of Tenant's failure to give such notice or
arrange such joint inspection, Landlord's inspection at or after Tenant's
vacating the Premises shall be conclusively deemed correct for purposes of
determining Tenant's responsibility for repairs and restoration.
10. UTILITIES. Landlord agrees to provide at its cost water,
electricity and gas (when applicable) service connections into the Premises in
accordance with the specifications, if any, attached hereto; but Tenant shall
pay for all water, gas, heat, light power, telephone, sewer, sprinkler charges
and other utilities and services used on or from the Premises, together with any
taxes, penalties, surcharges or the like pertaining thereto, and any maintenance
charges for utilities, and shall furnish all electric light bulbs and tubes. If
any such services am not separately metered to Tenant, Tenant shall pay a
reasonable proportion as determined by Landlord of all charges jointly metered
with other Premises, provided however, Landlord shall have the right to require
Tenant to pay such other reasonable proportion of said jointly metered charges
as may be determined by Landlord in its sole discretion. Landlord shall in no
event be liable for any interruption or failure of utility services on the
Promises.
11. ASSIGNMENT AND SUBLETTING.
A. Tenant, shall not sell, assign, encumber or otherwise transfer by
operation of law or otherwise, this lease or any interest herein, sublet the
Premises or any portion thereof, or suffer any other person to occupy or the use
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of the Premises or any portion thereof, without the prior written consent of
Landlord, as provided herein, nor shall Tenant permit any lien to be placed on
the Tenant's interest by operation of law. Tenant shall, by written notice,
advise Landlord of its desire from and after a stated date (which shall not be
less than thirty (30) days nor more than ninety (90) days after the date of
Tenant's notice) to sublet the Premises or any portion thereof for any part of
the term thereof. Said notice by Tenant shall state the name and address of the
proposed subtenant and Tenant shall deliver to Landlord a true and complete copy
of the proposed sublease with said notices. Landlord, upon receiving said notice
by Tenant, with respect to any of the Premises, my reasonably withhold its
consent to Tenant's subletting the Premises specified in said notice. Tenant
shall, at Tenant's sole cost and expense, discharge in full any outstanding
commission obligation which may be due and owing as at result of any proposed
assignment or subletting.
B. Any subletting hereunder by Tenant shall not result in Tenant being
released or discharged from any liability under this lease. As a condition to
Landlords prior written consent as provided for in subparagraph 11A above, the
subtenant or subtenants shall agree in writing to comply with and be bound by
all of the terms, covenants, conditions, provisions and agreements of this
lease, and Tenant shall deliver to Landlord promptly after execution, an
executed copy of each sublease and an agreement of said compliance by each
Sublessee.
C. Landlord's consent to any sale, assignment, encumbrance, subletting,
occupation, lien or other transfer shall not release Tenant from any of Tenant's
obligations hereunder or be deemed to be, a consent to any subsequent
occurrence. Any sale, assignment, encumbrance, subletting, occupation, lien or
other transfer of this lease which does not comply with the provision of this
paragraph 11 shall be null and void.
12. FIRE AND CASUALTY DAMAGE.
A. Landlord agrees to maintain insurance covering the building of which
the Premises are a part in an amount not less than one hundred percent (100%) of
the replacement cost thereof, insuring against the perils of Fire, Lightning,
Wind Extended Coverage, Vandalism and Malicious Mischief, extended by Special
Extended Coverage Endorsement to insure against all other Risks of Direct
Physical Loss, such coverages and endorsements to be as defined, provided and
limited in the standard bureau forms proscribed by the insurance regulatory
authority for the state in which the Premises are situated for use by insurance
companies admitted in such state for the writing of such insurance an risks
located within such state. Subject to the provisions of subparagraphs 12C, 12D
and 12E below, such insurance shall be for the sole benefit of Landlord and
under its sole control. Landlord's cost of maintaining such insurance shall be
paid by Tenant as additional rental, (or in the event the Promises constitute a
portion of a multiple occupancy building. Tenant shall pay its full
proportionate share of such cost). Said payment shall be made to Landlord within
thirty (30) days after presentation to Tenant of Landlord's statement setting
forth the amount due. Any payment to be made pursuant to this subparagraph 12A
with respect to the year in which this lease commences or terminates shall bear
the same ratio to the payment which would be required to be made for the full
year as the part of such year covered by the term of this lease bears to a full
year.
B. If any increase in the fire and extended coverage insurance premiums
paid by Landlord or other Tenants for the building in which Tenant occupies
space is caused by Tenants use and occupancy of the Premises, or if Tenant
vacates the Premises and causes an increase in such premiums, then Tenant shall
pay as additional rental the amount of such increase to Landlord.
C. If the buildings situated upon the Promises should be damaged or
destroyed by fire, tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
D. If the buildings situated upon the Premises should be totally
destroyed by fire, tornado or other casualty, or if they should be so damaged
thereby that rebuilding or repairs cannot in Landlord's estimation be completed
within one hundred twenty (120) days after the date upon which Landlord is
notified by Tenant of such damage, this lease shall terminate and the rent shall
be abated during the unexpired portion of this lease, effective upon the date of
the occurrence of such damage.
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E. If the buildings situated upon the Premises should be damaged by any
peril covered by the insurance to be provided by Landlord under subparagraph 12A
above, but only to such extent that rebuilding or repairs can in Landlord's
estimation be completed within one hundred twenty (120) days after the date upon
which Landlord is notified by Tenant of such damage, this lease shall not
terminate, and Landlord shall at its sole cost and expense thereupon proceed
with reasonable diligence to rebuild and repair such buildings to substantially
the condition in which they existed prior to such damage, except that Landlord
shall not be required to rebuild, repair or replace any part of the partitions,
fixtures, additions and other improvements which may have been pieced in, oil or
about the Premises by Tenant and except that Landlord may elect not to rebuild
if such damage occurs during the last year of the term or the lease exclusive of
tiny option which is unexercised at the time of such damage. If the Premises are
untenantable in whole or in part following such damage, the rent payable
hereunder during the period in which they are untenantable shall be reduced to
such extent as may be fair or reasonable under till of the circumstances. In the
event that Landlord should fail to complete such repairs and rebuilding within
two hundred (200) days after the date upon which Landlord is notified by Tenant
of such damage, Tenant may at its option terminate this lease by delivering
written notice of termination of Landlord as Tenant's exclusive remedy,
whereupon all rights and obligations hereunder shall cease and terminate.
F. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this lease by delivering written
notice of termination to Tenant within thirty (30) days after such requirement
is made by any such holder, whereupon all rights and obligations hereunder shall
cease and terminate.
G. Each of Landlord and Tenant hereby releases the other from any loss
or damage to property caused by fire or any other perils insured in policies of
insurance covering such property, even if such loss or damage shall have been
caused by the fault or negligence of the other party, or anyone for whom such
party may be responsible, provided, however, that this release shall be
applicable and in force and effect only with respect to loss or damage occurring
during such times as the releaser's policies shall contain a clause or
endorsement to the effect that any such release shall not adversely affect or
impair said policies or prejudice the right of the releaser to recover
thereunder and then only to the extent of the insurance proceeds payable under
such policies. Each of the Landlord and Tenant agrees that it will request its
insurance carriers to include in its policies such a clause or endorsement. If
extra, cost shall be charged therefore, each party shall advise the other
thereof and of the amount of the extra cost and the other party, at its
election, may pay the same, but it shall not be obligated to do so.
13. LIABILITY. Landlord shall not be liable to Tenant or Tenant's
employees, agents, patrons or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the Premises, resulting
from and/or caused in part or whole by the negligence or misconduct of Tenant
its agents, servants or employees, or of any other person entering upon the
Premises, or caused by the buildings and improvements located on the Premises
becoming out of repair, or caused by leakage of gas, oil, water or steam or by
electricity emanating from the Premises and Tenant hereby covenants and agrees
that it will at all times indemnify and hold safe and harmless the property, the
Landlord (including without limitation the trustee and beneficiaries if Landlord
is a trust), Landlord's agents and employees from any loss, liability, claims,
suits, costs, expenses, including without limitation attorney's fees and
damages, both real and alleged, arising out of or relating to any such damage or
injury; except injury to persons or damage to property the sole cause of which
is the negligence of Landlord or the failure of Landlord to repair any part of
the Premises which Landlord is obligated to repair and maintain hereunder within
a reasonable time after the receipt of written notice from Tenant of needed
repairs. Tenant shall procure and maintain throughout the term of this lease a
policy or policies of insurance, at its sole cost and expense, insuring both
Landlord and Tenant against all claims, demands or actions arising out of or in
connection with: (i) the Premises, (ii) the condition of the Premises; (iii)
Tenant's operations in and maintenance and use of the Premises, and (iv)
Tenant's liability assumed under this lease, the limits of such policy or
policies to be in the amount of not less than $1,000,000 combined single limit
for bodily injury and property damage, including loss of use thereof. All such
policies shall be procured by Tenant from responsible insurance companies
satisfactory to Landlord. Certified copies or certificates of such policies,
together with receipt evidencing payment of premiums therefor, shall be
delivered to Landlord prior to the commencement data of this lease. Not less
than fifteen (15) days prior to the expiration date of any such policies,
certified copies of the renewals thereof (bearing
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notations evidencing the payment of renewal premiums) shall be delivered to
Landlord. Such policies shall further provide that not less than thirty (30)
days written notice shall be given to landlord before such policy may be
canceled or changed to reduce insurance provided thereby.
14. CONDEMNATION.
A. If the whole or any substantial part of the Premises should be taken
for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and, in the reasonable opinion of the Tenant or Landlord, the taking
would prevent or materially interfere with the use of the Premises for the
purpose for which they are being used, this lease shall terminate and the rent
shall be abated during the unexpired portion of this lease, effective when the
physical taking of said Premises shall occur.
B. If part of the Premises shall be taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and this lease
is not terminated as provided in subparagraph 14A above, this lease shall not
terminate but the rent payable hereunder during the unexpired portion of this
lease shall be reduced to such extent as may be fair and reasonable under all of
the circumstances.
C. All compensation awarded for any taking (or the proceeds of private
sale in lieu thereof) of the Premises, buildings or other improvements, or any
part thereof, shall be the property of Landlord and Tenant hereby assigns its
interest in any such award to Landlord; provided, however, Landlord shall have
no interest in any award made to Tenant for loss of business, relocation
expenses, or for the taking of Tenant's fixtures and improvements if a separate
award for such items is made to Tenant.
15. HOLDING OVER. Tenant will, at the termination of this lease by
lapse of time or otherwise, yield up immediate possession to Landlord with all
repairs and maintenance required herein to be performed by Tenant completed. If
Landlord agrees in writing that Tenant may hold over after the expiration or
termination of this lease, unless the parties hereto otherwise agree in writing
on the terms or such holding over, the bold over tenancy shall be subject to
termination by Landlord at any time upon not less than five (5) days advance
written notice, or by Tenant at any time upon not less than thirty (30) days
advance written notice, and all of the other terms and provisions of this lease
shall be applicable during that period, except that Tenant shall pay Landlord
from time to time upon demand, as rental for the period of any hold over, an
amount equal to one and one half (1 1/2) therein effect on the termination date,
computed on a daily basis for each day of the hold over period. No holding over
by Tenant, whether with or without consent of Landlord, shall operate to extend
this lease except as otherwise expressly provided, The preceding provisions of
this paragraph 15 shall not be construed as consent for Tenant to hold over.
16. QUIET ENJOYMENT. Landlord covenants that it now has, or will
acquire before Tenant takes possession of the Premises, good title to the
Premises, free and clear of all liens and encumbrances, excepting only the lien
for current taxes not yet due, such mortgage or mortgages as are permitted by
the terms of this lease, zoning ordinances and other building and fire
ordinances and governmental regulations relating to the use of such property,
and easements, restrictions and other conditions of record. In the event this
lease is a sublease, then Tenant agrees to take the Premises subject to the
provisions of their prior leases. Landlord represents and warrants that it has
full right and authority to enter into this lease and that Tenant upon paying
the rental herein set forth and performing its other covenants and agreements
herein set forth, shall peaceably and quietly have, hold and enjoy the Premises
for the term hereof without hindrance or molestation from Landlord, subject to
the terms and provisions of this lease.
17. EVENTS OF DEFAULT. The following events shall be deemed to be
events of default by Tenant under this lease:
A. Tenant shall fail to pay any installment of the rent herein reserved
when due, or any other payment of reimbursement to Landlord required herein when
due, and such failure shall continue for a period of live (5) business days from
the date of receipt of written notice that such payment was due, or
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B. Tenant shall vacate all or a substantial portion of the Premises or
fail to continuously operate its business at the Premises for greater than
thirty (30) days for the permitted use set forth in paragraph 3 whether or not
Tenant is in default of the rental payments due under this lease, or
C. Tenant shall fail to discharge any lien placed upon the Premises in
violation of paragraph 22 hereof within thirty (30) days after any such lien or
encumbrance is filed against the Premises, or
D. Tenant shall fail to comply with any term, provision or covenant of
this lease (other than the foregoing in this paragraph 17), and shall not cure
such failure within twenty (20) days after written notice thereof to Tenant.
18. REMEDIES.
A. Upon each occurrence of any event of default, Landlord shall have
the option to pursue any one or more of the following remedies without any
notice or demand;
(1) Terminate this lease; and/or
(2) Enter upon and take possession of the Premises with or without
terminating this lease; and/or
(3) Alter all locks and other security devices at the Promises
with or without terminating this lease, and pursue, at
Landlord's option, one or more remedies pursuant to this
lease, and in any such event Tenant immediately shall
surrender its Premises to Landlord, and if Tenant fails to do
so, Landlord, without waiving any other remedy it may have,
may enter upon and take possession of the Premises or any part
thereof through consent or judicial proceeding.
B. In the event Tenant fails to pay any installment of rent hereunder
as and when such installment is due, to help defray the additional cost to
Landlord for processing such late payments. Tenant shall pay to Landlord on
demand a late charge in an amount equal to five (5%) percent of such
installment: and the failure to pay such amount within ten (10) days after
demand therefor shall be an event or default hereunder. The provision for such
late charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner.
C. Exercise by Landlord of any one or more remedies hereunder granted
or otherwise shall not be deemed to be an acceptance of surrender of the
Premises by Tenant, whether by agreement or by operation of law, it being
understood that such surrender can be affected only by the written agreement of
Landlord and Tenant. No such alteration of locks or other security devices and
no removal or other exercise of dominion by Landlord over the property of Tenant
or others at the Premises shall be deemed unauthorized or constitute a
conversion, Tenant hereby consenting, after any event of default to the
aforesaid exercise of dominion over Tenant's property within the Premises. All
claims for damages by reason of such re-entry and/or repossession and/or
alteration of locks or other security devices are hereby waived, as are all
claims for damages by reason of any distress warrant, forcible detainer
proceedings, sequestration proceedings or other legal process. Tenant agrees
that any re-entry by Landlord may be pursuant to judgment obtained in forcible
detainer proceedings or other legal proceedings and Landlord shall not be liable
for trespass or otherwise.
D. In the event Landlord elects to terminate the lease by reason of an
event of default, then notwithstanding such termination, Tenant shall be liable
for and shall pay to Landlord, at the address specified for notice to Landlord
herein, the sum of all rental and other indebtedness accrued to the date of such
termination, plus, as damages, an amount equal to the net present value of the
total rental hereunder for the remaining portion of the lease term (had such
term not been terminated by Landlord prior to the date of expiration stated in
paragraph 1) plus any expenses incurred in reletting the Premises, diminished by
the proceeds obtained by such reletting of the Premises.
E. In the event that Landlord elects to repossess the Premises without
terminating the lease, or in the event Landlord elects to terminate the lease,
then Tenant, at Landlord's option, shall be liable for and shall pay to
Landlord, at the address specified for notice to Landlord herein, all rental and
other indebtedness accrued to the date of such repossession, plus rental
required to be paid by Tenant to Landlord during the remainder of the lease term
until the date
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of expiration of the term as stated in paragraph 1 diminished by any net sums
thereafter received by Landlord through reletting the Premises during said
period (after deducting expenses incurred by Landlord as provided in
subparagraph 18F below). In no event shall Tenant be entitled to any excess of
any rental obtained by letting over and above the rental herein reserved.
Actions to collect amounts due by Tenant to Landlord under this Subparagraph may
be brought from time to time, on one or more occasions, without the necessity of
Landlord's waiting until expiration of the lease term.
F. In case of any event of default or breach by Tenant, or threatened
or anticipatory breach of default, Tenant shall also be liable for and shall pay
to Landlord, at the address specified for notice to Landlord herein, in addition
to any sum provided to be paid above, broker's fees incurred by Landlord in
connection with reletting the whole or any part of the Premises, the costs of
removing and storing Tenant's or the occupant's property; the costs of
repairing, altering, remodeling or otherwise putting the Premises into condition
acceptable to a new tenant or tenants, and ail reasonable expenses incurred by
Landlord in enforcing or defending Landlord's rights and/or remedies including
reasonable attorney's fees.
G. In the event of termination or repossession of the Premises for an
event of default, Landlord shall have an obligation to relet or to attempt to
relet the Premises, or any portion thereof, and to collect rental after
reletting. In the event of reletting, Landlord may relet the whole or any
portion of the Premises for any period to any tenant and for any use and
purpose.
H. If Tenant should fail to make any Payment or cure any default
hereunder within the time herein permitted, Landlord, without being under any
obligation to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account of Tenant (and enter
the Premises for such purpose), and thereupon Tenant shall be obligated to, and
hereby agrees to pay Landlord upon demand, all costs, expenses and disbursements
(including reasonable attorney's fees) incurred by Landlord in taking such
remedial action.
I. In the event that Landlord shall have taken possession of the
Premises pursuant to the authority herein granted, then Landlord shall have the
right to keep in place and use all of the furniture, fixtures and equipment at
the Premises, including that which is owned by or leased to Tenant at all times
prior to any foreclosure thereon by Landlord or repossession thereof by any
lessor thereof or third party having a lien thereon. Landlord shall also have
the right to remove from the Premises (through obtaining a distress warrant,
writ of sequestration or other legal process) all or any portion of such
furniture, fixtures, equipment and other property located thereon and to place,
same in storage at any Premises within the County in which the Premises is
located and such event, Tenant shall be liable to Landlord for costs incurred by
Landlord in connection with such removal and storage. Landlord shall also have
the right to relinquish possession of all or any portion of such furniture,
fixtures, equipment and other property to any person ("Claimant") claiming to be
entitled to possession thereof who presents to Landlord a copy of any instrument
represented to Landlord by Claimant to have been executed by Tenant (or any
predecessor Tenant) granting Claimant the right under various circumstances to
take possession of such furniture, fixtures, equipment or other property,
without the necessity on the part of Landlord to inquire into the authenticity
of said instrument's copy of Tenant's or Tenant's predecessors signature(s)
thereon and without the necessity of Landlord making any investigation or
inquiry as to the validity of the factual or legal basis upon which Claimant
purports to act, and Tenant agrees to indemnify and hold Landlord harmless from
all cost, expense, loss, damage and liability incident to Landlord's
relinquishment of possession of all or any portion of such furniture, fixtures,
equipment or other property to Claimant. The right of Landlord herein stated
shall be in addition to any and all other rights which Landlord has or may
hereafter have at law or in equity, and Tenant stipulates and agrees that the
rights herein granted Landlord are commercially reasonable.
20. MORTGAGES.
A. Tenant accepts this lease subject and subordinate to any mortgage(s)
and/or deed(s) of trust now or at tiny time hereafter constituting a lien or
charge upon the Premises or the improvements situated thereon, provided however,
that if the mortgagee, trustee, or holder of any such mortgage or deed of trust
elects to have Tenant's interest in this lease superior to tiny Such instrument,
then by notice to Tenant from such mortgagee, trustee or holder, this lease
shall be deemed superior to such lien, whether this lease was executed before or
after said mortgage or deed of trust.
10
<PAGE> 11
Tenant shall at any time hereafter on demand execute any instruments, releases
or other documents which may be required by any mortgagee for the purpose of
subjecting and subordinating this lease to the lien of any such mortgage. All
mortgages or deeds of trust referred to in this subparagraph 20A refer to first
mortgages or deeds of trust only.
B. Tenant agrees not to look to the mortgagee, as mortgagee, mortgagee
in possession, or successor entitled to the property, for accountability for any
security deposit required by the Landlord hereunder, unless said sums have been
received by said mortgagee as security for Tenant's performance of this lease.
21. LANDLORD'S DEFAULT. In the event Landlord should become in default
in any payments due on any such mortgage described in Paragraph 20 hereof or in
the payment of taxes or any other items which might become a lien upon the
Premises and which Tenant is not obligated to pay under the terms and provisions
of this lease, Tenant is authorized mind empowered after giving Landlord five
(5) days prior written notice of such default and Landlord's failure to cure
such default, to pay any such items for and on behalf of Landlord, and the
amount of any item so paid by Tenant for or on behalf of Landlord, together with
any interest or penalty required to be paid in connection therewith, shall be
payable on demand by Landlord to Tenant; provided however, that Tenant shall not
be authorized and empowered to make any payment under the terms of this
Paragraph 20 unless the item paid shall be superior to Tenant's interest
hereunder. In the event Tenant pays any mortgage debt in full, in accordance
with this paragraph, it shall, at its election, be entitled to the mortgage
security by assignment or subrogation.
22. MECHANICS LIEN AND OTHER TAXES. Tenant shall have no authority,
express or implied, to create or place any lien or encumbrance of any kind or
nature whatsoever upon, or in any manner to bind the interests of Landlord in
the Premises or to charge the rentals payable hereunder for any claim in favor
of any person dealing with Tenant, including those who may furnish materials or
perform labor for any construction or repairs, and each such claim shall affect
and each such lien shall attach to, if at all, only the leasehold interest
granted to Tenant by this instrument. Tenant covenants and agrees that it will
pay or cause to be paid all sums legally due and payable by it on account of any
labor performed or materials furnished in connection with any work performed on
the Premises on which any lien is or can be validly and legally asserted against
its leasehold interest in the Premises or the improvements thereon and that it
will save and hold Landlord harmless from any and all loss, cost or expense
based on or arising out of asserted claims or liens against the leasehold estate
or against the right, title and interest of the Landlord in the Premises or
under the terms, of this lease. Tenant agrees to give Landlord immediate written
notice if any lien or encumbrance is placed on the Premises,
23. NOTICES. Each provision of this Instrument or of any applicable
governmental laws, ordinances , regulations and other requirements with
reference to the sending, mailing or delivery of any notice or the making or any
payment by Landlord to Tenant or with reference to the sending, mailing or
delivery of any notice or the making of any payment by Tenant to Landlord shall
be deemed to be complied with when and if the following steps are taken:
A. All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address hereinbelow set
forth or at such other address as Landlord may specify from time to time by
written notice delivered In accordance herewith. Tenant's obligations to pay
rent and any other amounts to Landlord under the terms of this lease shall not
be deemed satisfied until such rent and other amounts have been actually
received by Landlord.
B. All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address hereinbelow set forth, or at such
other address within the continental United States as Tenant may specify from
time to time by written notice delivered in accordance herewith.
C. Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered whether actually received or not three
(3) business days after being deposited in the United States mail, postage
prepaid, Certified or Registered Mail, one (1) day after being deposited with a
reputable overnight courier and on the same day when physically delivered and
addressed to the parties hereto at the respective addresses set out below, or at
such other address as they have theretofore specified by written notice
delivered in accordance herewith:
11
<PAGE> 12
LANDLORD: TENANT:
- --------- -------
CK Deep River, LLC RF Micro Devices, Inc.
c/o Childress Klein Properties 7625 Thorndike Road
301 South College Street, Suite 2800 Greensboro, North Carolina 27409-9421
Charlotte, North Carolina 28202-6021 Attention:
If and when included within the term "Landlord", as used in this Instrument,
there are more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of such a notice specifying some
individual at some specific address for the receipt of notices and payments to
Landlord; if and when included within the term "Tenant", as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant", respectively, shalt be bound
by notices given in accordance with the provisions of this paragraph to the same
effect as if each had received such notice.
24. HAZARDOUS MATERIALS
A. For purposes of this section, "Hazardous Materials" shall include
all solid, liquid or gaseous materials defined or regulated as wastes under any
federal statute or regulation or any state or local law, regulation or ordinance
and shall further include all other substances defined or regulated as
pollutants or as hazardous, toxic, infectious, or radioactive substances under
any federal statute or regulation or any state or local law, regulation or
ordinance, all as amended from time to time.
B. Tenant shall not cause or permit any Hazardous Materials to be used,
generated, stored or disposed of on, under or about, or transported to or from
the Premises (collectively, "Hazardous Materials Activities") except in
compliance with all applicable federal, state, and local laws, regulations,
ordinances and orders governing such Hazardous Materials or Hazardous Materials
Activities, which compliance shall be at Tenant's sole cost and expense.
Additionally, Tenant shall not cause or permit any Hazardous Materials to be
disposed of on, under or about the Premises without the express prior written
consent of the Landlord, which may be withheld for any reason and may be revoked
at any time.
C. Landlord shall not be liable to Tenant or to any other party for any
Hazardous Materials Activities conducted or permitted on, under or about the
Premises by Tenant or by Tenant's employees, agents, contractors, licensees or
invitees, and Tenant shall indemnify, defend and hold Landlord harmless from any
claims, damages, fines, penalties, losses, judgments, costs and liabilities
arising out of or related to any Hazardous Materials Activities conducted or
permitted on, under or about the Premises by Tenant or by Tenant's employees,
agents, contractors. Licensees or invitees, regardless of whether Landlord shall
have consented to, approved of, participated in or had notice of such Hazardous
Materials Activities. The provisions of this paragraph shall survive the
expiration or termination of this lease.
D. At the expiration or earlier termination of this lease, Tenant shall
remove from the Premises, at Tenant's sole expense, all Hazardous Materials
located, stored and disposed of on, under or about the Premises, Tenant shall
close, remove or otherwise render safe any buildings, tanks, containers or other
facilities related to the Hazardous Materials Activities conducted or permitted
on the Premises in the manner required by all applicable laws, regulations,
ordinances or orders.
E. Landlord represents it has no actual knowledge of the existence of
any Hazardous Materials on or about the Premises and that it has not stored or
disposed of any Hazardous Material on or about the Premises.
25. INSOLVENCY OR BANKRUPTCY. The appointment of a receiver to take
possession of all or substantially all of the assets of Tenant, or an assignment
of Tenant for the benefit of creditors, or any action taken or
12
<PAGE> 13
suffered by Tenant under any insolvency, bankruptcy, or reorganization act,
shall at Landlord's option constitute a breach of this Lease by Tenant. Upon the
happening of any such event or at any time thereafter, this Lease shall
terminate thirty (30) days after written notice of termination from Landlord to
Tenant. In no event shall this Lease be assigned or assignable by operation of
law or by voluntary or involuntary bankruptcy proceedings or otherwise and in no
event shall this Lease or any rights or privileges hereunder be an asset of
Tenant under any bankruptcy, insolvency, or reorganization proceedings.
26. LANDLORD'S LIABILITY. Any liability of Landlord hereunder shall be
enforceable only out of the Building or Property and in no event out of the
separate assets of any constituent partner of Landlord. No holder or beneficiary
of any mortgage or deed of trust on any part of the Property shall have any
liability to Tenant hereunder for any default of Landlord.
27. MISCELLANEOUS.
A. Words of any gender used in this lease shall be held and construed
to include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
B. In the event the Premises constitutes a portion of a multiple
occupancy building or building complex, Tenant's "proportionate share", as used
in this lease, shall mean a fraction, the numerator of which is the space
contained in the Premises and the denominator of which is the entire space
contained in the building or building complex.
C. The terms, provisions and covenants and conditions contained in this
lease shall apply to, inure to the benefit of, and be binding upon the parties
hereto and upon their respective heirs, legal representatives, successors and
permitted assigns, except as otherwise herein expressly provided. Landlord shall
have the right to assign any of its rights and obligations under this lease.
Each party agrees to furnish to the other, promptly upon demand, a corporate
resolution, proof of due authorization by partners, or other appropriate
documentation evidencing the due authorization of such party to enter into this
lease.
D. The captions inserted in this lease are for convenience only and in
no way define, limit or otherwise describe the scope or intent of this lease, or
any provision hereof, or in any way effect the interpretation of this lease.
E. Tenant agrees from time to time within ten (10) business days after
request of Landlord, to deliver to Landlord, or Landlord's designee a
certificate of occupancy (if applicable) and an estoppel certificate stating
that this lease is in full force and effect, the date to which rent has been
paid, the unexpired term of this lease and such other matters pertaining to this
lease as may be requested by Landlord. It is understood and agreed that Tenant's
obligation to furnish such estoppel certificates in a timely fashion is a
material inducement for Landlord's execution of this lease.
F. This lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
G. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation all payment obligations with respect to taxes and insurance and all
obligations concerning the condition of the Premises. Upon the expiration or
earlier termination of the term hereof, and prior to Tenant vacating the
Premises, Tenant shall pay to Landlord any amount reasonably estimated by
Landlord using cost effective contractors as necessary to put the Premises,
including without limitation all heating and air conditioning systems and
equipment therein, in good condition and repair, reasonable wear and tear
accepted Tenant shall also, prior to vacating the Promises, pay to Landlord the
amount, as estimated by landlord, of Tenant's obligation hereunder for real
estate taxes and insurance premiums for the year in which the lease expires or
terminates. All such amounts shall be used and held by Landlord for payment of
such obligations of Tenant hereunder, with Tenant being liable for any
additional costs therefor upon demand by Landlord, or with any excess to be
returned to Tenant after all such obligations have been determined and
satisfied, as the case may
13
<PAGE> 14
be. Any security deposit held by Landlord shall be credited against the amount
payable by Tenant under this subparagraph 27G.
H. If any clause or provision of this lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
lease, then and in that event it is the intention of the parties hereto that the
remainder of this lease shall not be affected thereby, and it is also the
intention of the parties to this lease that in lieu of each clause or provision
of this lease that is illegal, invalid or unenforceable, there be added as a
part of this lease contract a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
I. Because the Premises are on the open market and are presently being
shown, this lease shall be treated its an offer with the Premises being subject
to prior lease and such offers subject to withdrawal or non-acceptance by
Landlord or to other use of the Premises without notice, and this lease shall
not be valid or binding unless and until accepted by Landlord in writing and a
folly executed copy delivered to both parties hereto.
J. All references in this lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time, on which
all parties hereto have executed this lease.
K. Time is of the essence of this lease and all of its provisions. This
lease in all respects shall be governed by the laws of the State of North
Carolina.
L. Tenant shall not be permitted to install drapes, curtains, blinds or
any window treatment without Landlord's prior written approval.
M. The duties and obligations of Tenant herein shall be binding upon
all or any of them. The duties and obligations of Tenant shall run and extend
not only to the benefit of the Landlord, as named herein, but to the following,
at the option of the following or any of them: (i) any person by, through or
under which Landlord derives the right to lease the Premises, (ii) the owner of
the Premises; and (iii) holders of mortgage or rent assignment interests in the
Premises, as their respective interests may appear; provided, however, nothing
contained herein shall be construed to obligate Tenant to pay rent to any person
other than the Landlord until such time as Tenant has been given written notice
of either an exercise of a rent assignment or the succession of some other party
to the interests of Landlord.
28. ADDITIONAL PROVISIONS. See Additional Provisions, Paragraphs 29
through 30, attached hereto and made a part hereof as if fully incorporated
herein and when in conflict with the printed portion of this lease, said
Additional Provisions shall prevail.
14
<PAGE> 15
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
under seal.
EXECUTED BY LANDLORD this 25th day of May, 1999.
LANDLORD:
CK DEEP RIVER, LLC, a North Carolina
limited liability company
By: Childress Klein Properties, Inc.,
its Manager
ATTEST:
By: /s/ Andrea Scherbrennon By: /s/ Landon R. Wyatt, III [SEAL]
--------------------------------
Its: Asst. Secretary Landon R. Wyatt, III
Vice President
[CORPORATE SEAL]
EXECUTED BY TENANT this 20th day of May, 1999.
TENANT:
RF MICRO DEVICES. INC., a ______________
Corporation
ATTEST:
By: /s/ Powell T. Seymour By: /s/ William A. Priddy, Jr. [SEAL]
------------------------------------
Its: Corporate Secretary Printed Name: William A. Priddy, Jr.
Its: Vice President
[CORPORATE SEAL]
15
<PAGE> 16
ADDITIONAL PROVISIONS
29. Renewal Options.
Provided that Tenant is not in default of any of the material
terms, covenants and conditions hereof, and this Lease has not
been assigned or the Premises (or a part thereof) sublet as
provided except as provided in Section 11.D above, Tenant
shall have the right and option to extend the original term of
this Lease (the "Primary Term") for two further terms, the
first such term being for one hundred twenty (120) months (the
"First Renewal Term") and the other being for one hundred
twenty (120) months (the "Second Renewal Term").
The rental rate increases during the First and Second Renewal
Terms shall be determined by applying the Index. The Consumer
Price Index (the "Index") is defined as the Consumer Price
Index for all urban consumers for the Atlanta Metropolitan
Area (All Items) as published by the United States Department
of Labor Bureau of Labor Statistics. The percentage increase
during any period of time shall be determined by subtracting
the Index at the beginning of the period from the Index at the
end of the period, and then dividing that difference by the
Index at the beginning of the period. In the event that said
index is discontinued or revised during the term of this
Lease, such other reasonable governmental index or computation
as determined by Landlord shall be deemed the basis for
computation.
The extension of the First Renewal Term shall be on the same
terms, covenants and conditions as provided for in the Primary
Term except for this paragraph and except that the rental
during the First Renewal Term shall be determined by
increasing the base rental rate by the corresponding increase
in the Index at the following times:
Increase Base Rent by Corresponding Increase in the
Beginning at Month Index During Months
- ------------------ ---------------------------------------------------
181 121-180
228 181-227
264 228-263
Notwithstanding the foregoing, in no event shall the bas rent
determined during the First Renewal Term be less than the base
rent during any previous term.
Tenant shall deliver written notice to Landlord of Tenant's
intent to exercise the renewal option for the First Renewal
Term granted herein not less than one hundred eighty (180)
days prior to the expiration of the original term of this
Lease. In the event Tenant fails to deliver such written
notice within the time period set forth above, then Tenant's
right to extend the term hereof shall expire and be of no
further force and effect and shall become null and void.
In the event that Tenant exercises its option for the First
Renewal Term as provided herein and provided that Tenant is
not in default of any of the material terms, covenants and
conditions hereof, and this Lease has not been assigned or the
Premises (or a part thereof) sublet, then Tenant shall have
the right and option to extend the term of this Lease for an
additional term of one hundred twenty (120) months.
The extension of the Second Renewal Term shall be on the same
terms, covenants and conditions as provided for in the First
Renewal Term except for this paragraph and except that the
rental during the
16
<PAGE> 17
Second Renewal Term shall be determined by increasing the base
rental rate by the corresponding increase in the Index at the
following times:
Increase Base Rent by Corresponding Increase in the
Beginning at Month Index During Months
- ------------------ ---------------------------------------------------
301 264-300
349 301-348
385 349-384
Notwithstanding the foregoing, in no event shall the base rent
determined during the Second Renewal Term be less than the
base rent during any previous term.
Tenant shall deliver written notice to Land lord of Tenant's
intent to exercise the renewal option granted herein on the
later of (i) not less than one hundred eighty (180) days prior
to the expiration of the First Renewal Term of this Lease. In
the event Tenant fails to deliver such written notice within
the time period set forth above then Tenant's right to extend
the term hereof shall expire and be of no further force and
effect and shall become null and void.
30. Right of First Refusal on Adjacent Space
Provided Tenant is not then in material default hereunder
beyond applicable cure period, Tenant shall have a right of
first refusal with respect to the approximately 25,600 square
foot space adjacent to the Premises (the "Adjacent Space")
which becomes vacant during the term of this lease (including
any renewal term). Landlord shall inform Tenant when such
Adjacent Space becomes available. Landlord shall give Tenant
notice (which can be by facsimile) of such availability. Upon
receipt of such notice. Tenant shall have ten (10) business
days in which to notify Landlord (which can be by facsimile)
whether Tenant desires to lease such space. If Tenant timely
notifies Landlord that Tenant desires to lease such space.
Landlord and Tenant shall execute an amendment to the Lease
under which Tenant shall lease such space in its entirety.
Upon execution of such addendum, such space shall be deemed
part of the Premises for purposes of this lease, the Premises
shall be defined as containing one hundred two thousand four
hundred (102,400) square feet and the base rental shall be
increased as follows during the initial term of the Lease.
Monthly Per Square Foot
------- ---------------
Months 1-48 $7,400 $3.47
Months 49-60 $7,640 $3.58
Months 61-120 $7,870 $3.69
Months 121-180 $8,790 $4.12
Should Tenant decline to exercise its option for such
available space, then this provision shall expire and be of no
further force and effect
17
<PAGE> 18
EXHIBIT "A"
Approximately 76,800 square feet as outlined in red on Exhibit "C"
attached hereto and made a part hereof, out of a larger warehouse building
situated on a tract of ground, the legal description of which is:
The real property lying and being in Guilford County, North Carolina and
described below (hereinafter referred to as the Land):
BEING all of Lots 4 and 5 of the PROPERTY OF PEGG HEIRS as shown on plat thereof
recorded in Plat Book 122, page 149 of the Guilford County, North Carolina
Public Registry,
TOGETHER WITH permanent and temporary easements as described in Deed recorded in
Book 4490, page 1534.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED BALANCE SHEET OF RF MICRO DEVICES, INC. AS OF JUNE 30, 1999 AND THE
CONDENSED STATEMENT OF OPERATIONS FOR THE THREE MONTHS ENDED JUNE 30, 1999 AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> MAR-25-2000
<PERIOD-START> MAR-28-1999
<PERIOD-END> JUN-26-1999
<CASH> 124,930
<SECURITIES> 0
<RECEIVABLES> 32,994
<ALLOWANCES> 0
<INVENTORY> 28,560
<CURRENT-ASSETS> 187,613
<PP&E> 92,452
<DEPRECIATION> (9,420)
<TOTAL-ASSETS> 288,619
<CURRENT-LIABILITIES> 34,966
<BONDS> 0
0
0
<COMMON> 225,038
<OTHER-SE> 16,594
<TOTAL-LIABILITY-AND-EQUITY> 288,619
<SALES> 62,048
<TOTAL-REVENUES> 62,048
<CGS> 35,645
<TOTAL-COSTS> 47,222
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (362)
<INCOME-PRETAX> 16,028
<INCOME-TAX> 5,610
<INCOME-CONTINUING> 10,418
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 10,418
<EPS-BASIC> 0.26
<EPS-DILUTED> 0.25
</TABLE>
