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Frequently Asked Questions
  Staff Interpretation Letter 2013-5
Identification Number 1091

This is in response to your request asking whether the Director is eligible to be an independent member of the company's board of directors under Listing Rule 5605(a)(2)(A) and IM-5605 (the "Rules"), notwithstanding his prior service as the company's Executive Chairman.

According to the information you provided, the Director previously served as an independent member of the company's board of directors (the "Board") and non-executive Chairman. The Director did not fall within any of the disqualifications from serving as an independent director in Listing Rule 5605(a)(2) and the Board made an affirmative determination that the Director did not have a relationship that would impair his independent judgment in carrying out the responsibilities of a director. Additionally, up until his appointment as Executive Chairman, the Director served as a member of the Compensation Committee and Nominating and Corporate Governance Committee.

Last year, the Board undertook evaluations of the company's management team. In order to get a better inside perspective of senior management, the Board asked the Director to serve as Executive Chairman, given his years of senior executive experience and his professional relationship with the company's President and Chief Executive Officer.

You stated that at the time of the Director's appointment, the independent directors of the Board understood that the Director's service as Executive Chairman would be temporary, allowing the Board to complete its assessment and, if necessary, undertake and complete a change in senior management. To that end, the employment agreement with the Director was structured such that it could be terminated on short notice for any reason whatsoever without incurring significant cost to the company.

Approximately four months later, the company appointed a new President and Chief Executive Officer. Simultaneously with this appointment, the Director resigned his position as Executive Chairman and transitioned back to his position as non-executive Chairman of the Board. Upon resigning from the position as Executive Chairman, the Director ceased to be an officer and employee of the company and his employment agreement was terminated. You stated that in relation to his employment, the Director did not receive severance or termination benefits, was not awarded any equity compensation, is not due any future compensation and did not participate in any employee benefit plan after his employment.

Following our review of the information you provided, we have concluded that the Director's service as Executive Chairman would not preclude the company from making a determination that the Director is independent on a going-forward basis. Under IM-5605, employment by a director as an Executive Officer on an interim basis does not disqualify that director from being considered independent following such employment pursuant to Listing Rule 5605(a)(2)(A), provided that the interim employment did not last longer than one year.

Notwithstanding this conclusion, pursuant to Listing Rule 5605(a)(2) and IM-5605, the company's board has the responsibility to make an affirmative determination that no relationship exists that would interfere with the Director's exercise of independent judgment in carrying out the responsibilities of a director. In assessing the Director's independence, the Board should consider his service as Executive Chairman. We are not expressing an opinion as to whether it would be appropriate for the company's board to make such a finding with respect to the Director. Please also note that if the Director participated in the preparation of the company's financial statements while serving as Executive Chairman, Rule 5605(c)(2)(A)(iii) precludes his service on the audit committee for three years.

Publication Date*: 9/30/2013 Mailto Link Identification Number: 1091
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