(b) Participant hereby appoints each of the Chief Executive Officer and General Counsel of the Company (each, a Proxy) as the agent, proxy, and attorney-in-fact for Participant (including, without limitation, full power and authority to act on Participants behalf) to take any action, should the Proxy elect to do so in the Proxys sole discretion, to: (i) vote on all matters to be voted on in accordance with this Section 4.5, (ii) and to take all other actions to be taken by or on behalf of Participant in furtherance of the provisions of this Section 4.5. Participant hereby agrees not to assert any claim against, and agrees to indemnify and hold harmless, the Proxy from and against any and all losses incurred by the Proxy or any of the Proxys affiliates, partners, employees, agents, investment bankers or representatives, or any affiliate of any of the foregoing, relating to the Proxys capacity as the Proxy, other than such claims or losses resulting from the Proxys gross negligence or willful misconduct.
(c) Participant hereby agrees to enter into a separate voting agreement with the Company to the extent determined necessary or appropriate by the Company and any such voting agreement shall, to the extent provided therein, supersede this Section 4.5. This Section 4.5 shall terminate and be of no further force or effect upon the earlier of the following: (i) the Companys sale of its common stock in a firm commitment underwritten public offering pursuant to a registration statement under the Securities Act of 1933, as amended, or (ii) the consummation of a Change in Control.
4.6 Section 83(b) Election for Restricted Shares. Participant acknowledges that, with respect to the exercise of a Nonstatutory Stock Option for Restricted Shares, unless an election is filed by Participant with the Internal Revenue Service and, if necessary, the proper state taxing authorities, within thirty (30) days of the purchase of the Shares, electing pursuant to Section 83(b) of the Code (and similar state tax provisions if applicable) to be taxed currently on any difference between the purchase price of the Shares and their fair market value on the date of purchase, there will be a recognition of taxable income to Participant, measured by the excess, if any, of the fair market value of the Shares, at the time the Company Repurchase Right lapses over the purchase price for the Shares. Participant further acknowledges that, with respect to the exercise of an Incentive Stock Option for Restricted Shares, that unless an election is filed by Participant with the Internal Revenue Service and, if necessary, the proper state taxing authorities, within thirty (30) days of the purchase of the Shares, electing pursuant to Section 83(b) of the Code (and similar state tax provisions if applicable) to have the risk of forfeiture disregarded currently in determining any difference between the purchase price of the Shares and their Fair Market Value on the date of purchase for alternative minimum tax purposes, the excess, if any, of the fair market value of the Shares, at the time the Companys Repurchase Right lapses, over the purchase price for the Shares may be treated as an item of adjustment for alternative minimum tax purposes in the year of vesting.
Participant represents that Participant has consulted any tax consultant(s) Participant deems advisable in connection with the purchase of the Shares or the filing of the election under Section 83(b) of the Code and similar tax provisions.
PARTICIPANT ACKNOWLEDGES THAT IT IS PARTICIPANTS SOLE RESPONSIBILITY AND NOT THE COMPANYS TO FILE TIMELY THE ELECTION UNDER SECTION 83(B) OF THE CODE, EVEN IF PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON PARTICIPANTS BEHALF.