Employment Agreement dated April 27, 2004



 EXHIBIT 10.18 
  
 EMPLOYMENT AGREEMENT 
  
 THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and
entered into, effective as of April 27, 2004 (the “Effective Date”), by and between CALLWAVE, INC., a California corporation (the “Company”), and
DAVID F. HOFSTATTER (“Employee”), with reference to the following facts: 
  
 RECITALS: 
  
 The parties have agreed to execute this Agreement in order to memorialize the terms and conditions on which the Company shall employ Employee. 

 
 AGREEMENTS: 
  
 NOW, THEREFORE, the parties hereto,
intending to be legally bound, do hereby agree as follows: 
  

	1.	 	POSITION AND DUTIES 

  
 1.1 POSITION AND TITLE. The Company hereby hires Employee to
serve as the President and Chief Executive Officer of the Company. 
  
 (a) LIMITS ON AUTHORITY. Employee shall perform his duties as President and Chief Executive Officer of the Company pursuant to this Agreement
in compliance with applicable law, consistent with such direction as the Company’s Board of Directors supplies to Employee from time to time, and in accordance with Company’s policies and procedures as published from time to time.

  
 (b) ANNUAL
REVIEWS. Within thirty (30) days after each annual anniversary of the Effective Date of this Agreement, the Company shall review Employee’s performance of his duties pursuant to this Agreement and advise
Employee of the results of that review. In connection with each such review, the Company shall evaluate whether any increase in Employee’s compensation under Section 2, below, is appropriate. 
  
 (c) REPORTING AND
AUTHORITY. Employee shall report to the Company’s Board of Directors. Subject to the power and authority of the Company’s Board of Directors to govern the affairs of the Company, Employee shall have full
authority and responsibility for supervising and managing the daily affairs of the Company, including (i) working with the Company’s Board of Directors to develop and approve business objectives, policies and plans that improve profit and
growth objectives, (ii) communicating business objectives and plans within the Company, (iii) ensuring that plans and policies are promulgated to and implemented by subordinate managers, (iv) directing operations to achieve planned performance goals
and developing management systems to effectively control each Company unit, (v) ensuring that each operating unit provides those functions required for achieving its business objectives and that each unit is properly organized, staffed and directed
to fulfill its responsibilities, (vi) developing the organization and personnel, products, facilities, technology, and appropriate financial resources to secure the position of the Company and to facilitate its planned development, (vii) directing
periodic reviews of the Company’s strategic market position and combining this information with corollary analysis of the Company’s products and financial resources, (viii) providing periodic financial information concerning the operations
of the business, human resources and sales growth plans to the Company’s Board of Directors, and (ix) ensuring that the operation of the Company complies with applicable laws. 
  
 1.2 ACCEPTANCE. Employee hereby accepts employment by the Company in the capacity set forth in
Section 1.1, above, and agrees to perform the duties of such position from and after the Effective Date 

  

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of this Agreement in a diligent, efficient, trustworthy, and businesslike manner. Employee agrees that, to the best of the Employee’s ability and
experience, Employee at all times shall loyally and conscientiously discharge all of the duties and responsibilities imposed upon Employee pursuant to this Agreement. 
  
 1.3 BUSINESS TIME. Employee shall devote his exclusive business
time to the performance of his duties under this Agreement. 
  
 1.4 LOCATION. Employee shall perform his duties under this Agreement from the Company’s principal offices in Santa Barbara, California. Employee acknowledges and agrees that from time to time
he shall be required to travel (at the cost and expense of the Company) to other locations outside of Santa Barbara, California, in order to discharge his duties under this Agreement. 
  
 1.5 TERM. Subject to such sooner term pursuant to Section 4 below, the term of this Agreement
shall commence as of the Effective Date and shall expire on the third annual anniversary thereof in April 2007. 
  
 2. COMPENSATION. The Company shall compensate Employee for his services pursuant to this Agreement as follows: 
  
 2.1 SALARY. The Company shall pay to Employee
an annual salary in the amount of Two Hundred Thousand Dollars ($200,000.00) (“Base Compensation”), payable in periodic installments in accordance with the Company’s regular payroll practices as in effect from time to time.
Such annual salary shall be subject to periodic increases, in such amounts (if any) as the Company may determine to be appropriate, at the time of Employee’s annual review pursuant to Section 1.1(b), above, at such other times (if any) as the
Company may select. 
  
 2.2 ANNUAL
BONUS. Employee shall be eligible for discretionary annual bonus compensation, in the discretion of the Company and based upon the performance of Employee and the Company, as follows: 
  
 (a) CASH
BONUS. Employee shall be eligible to receive in each calendar year during the term of this Agreement a cash bonus of up to Sixty Thousand Dollars ($60,000) per year. Such amount shall be awarded in semi-annual
installments, with the first installment payable on or before October 31st (beginning in 2004) and the second
installment payable on or before April 30th (beginning in 2005). 
  
 (b) OPTION
GRANT. Employee also shall be eligible to receive annually an incentive stock option for the purchase of up One Hundred Thousand (100,000) shares of Company common stock, with the exact number of shares to be
covered by any option, the exercise price of such option, and the vesting schedule thereof to be determined in the sole discretion of the Board of Directors. 
  
 2.3 FRINGE BENEFITS/VACATION. Employee shall accrue four (4) weeks’ paid vacation in each
period of twelve (12) consecutive months of employment during the term of this Agreement. Employee shall be eligible for such other fringe benefits as are provided to the Company’s employees generally from time to time. 
  
 2.4 REIMBURSEMENT OF
EXPENSES. The Company shall reimburse Employee for authorized expenses incurred by Employee in the performance of his duties, provided that such expenses are reasonable in amount, incurred for the benefit of the
Company, and are supported by itemized accountings and expense receipts submitted to the Company prior to any reimbursement. 
  
 3. BOARD POSITION. During the term of this Agreement, the Company shall exercise commercially reasonable
efforts to Employee to be nominated for election to the Company’s Board of Directors. 
  

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 4. TERMINATION 
  
 4.1 DEFINITIONS. For purposes of this Agreement, the term: 
  
 (a) “CHANGE OF
CONTROL” shall mean the occurrence of any of the following events: 
  
 (i) any transaction or series of related transactions by which any “person” (as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), including all affiliates of such person, who, prior to the date of such transaction or series of related transactions, is the beneficial owner of less
than 5% of the outstanding shares of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly of securities of the Company representing 25% or more of the combined voting
power of the Company’s then outstanding securities, other than (A) a trustee or other fiduciary holding securities under an employee benefit plan of the Company, (B) any affiliate, or any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, or (c) Peter V. Sperling or any affiliate thereof. For purposes of this Agreement, the term “affiliate,” as applied to any
person, shall mean any other person that is controlled by, in control of, or commonly controlled with such person. 
  
 (ii) during any period of two consecutive years commencing on or after the Effective Date of this Agreement, individuals who at the
beginning of such period constitute the Board of Directors of the Company, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii)
or (iv) of this Section) whose election by the Board of Directors of the Company or nomination for election by the Company’s stockholders was approved by a vote of at least a majority of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for election was previously so approved (hereinafter referred to as “Continuing Directors”), cease for any reason to constitute at least a majority
thereof; 
  
 (iii) the stockholders
of the Company approve a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the Company (or such surviving entity) outstanding immediately
after such merger or consolidation, or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no “person” (as hereinabove defined) acquires more than 25% of the combined
voting power of the Company’s then outstanding securities; or 
  
 (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets.
For purposes of this clause (iv), the term “the sale or disposition by the Company of all or substantially all of the Company’s assets” shall mean a transaction or series of related transactions involving assets of the Company or of
any direct or indirect subsidiary of the Company (including the stock of any direct or indirect subsidiary of the Company) in which the value of the assets or stock being sold or otherwise disposed of (as measured by the purchase price being paid
therefor or by such other method as the Board of Directors of the Company determines is appropriate in a case where there is no readily ascertainable purchase price) constitutes more than two-thirds of the “fair market value of the
Company” (as hereinafter defined). For purposes of the preceding sentence, the “fair market value of the Company” shall be the aggregate market value of the Company’s outstanding common stock (on a fully diluted basis) plus the
aggregate market value of the Company’s other outstanding equity securities. The aggregate market value of the Company’s equity securities 

  

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shall be determined by multiplying the number of shares of the Company’s common stock (on a fully diluted basis) outstanding on the date of the
execution and delivery of a definitive agreement with respect to the transaction or series of related transactions (the “Transaction Date”) by the average closing price of such security for the ten (10) trading days immediately
preceding the Transaction Date, or if not publicly traded, by such other method as the Board of Directors of the Company shall determine is appropriate.  
  
 (b) “DATE OF
TERMINATION” shall mean the date specified in the Notice of Termination (as defined below).  
  
 (c) “DISABILITY” OR “DISABLED” shall mean that Employee is
suffering from a mental or physical condition which, in the opinion of a licensed medical doctor reasonably acceptable to the Company, renders Employee incapable for a period for a period of at least six (6) consecutive months from performing his
regular duties under this Agreement. Employee covenants and agrees to submit to a reasonable physical examination by such licensed medical doctor for the purpose of evaluating whether Employee is Disabled. 
  
 (d) “GOOD
REASON” shall mean (x) the breach by the Company of any of its obligations under this Agreement without Employee’s express written consent or (y) the occurrence of any of the following circumstances without
Employee’s express written consent, unless such breach or circumstances are fully corrected prior to the Date of Termination specified in the Notice of Termination given in respect thereof: 
  
 (i) a material reduction in the duties and authority
assigned to Employee immediately prior thereto, or an adverse alteration in the nature or status of Employee’s office, title, responsibilities, including reporting responsibilities, or the conditions of Employee’s employment from those in
effect immediately prior thereto or a failure to appoint Employee as Chief Financial Officer; 
  
 (ii) a reduction in Employee’s Base Compensation; 
  
 (iii) the failure by the Company to pay to Employee any portion of Employee’s current
compensation within seven (7) days following the date on which such compensation is due; 
  
 (iv) either (x) the failure by the Company to continue in effect any compensation plan in which Employee participates that is
material to Employee’s total compensation, unless an equitable arrangement (embodied in an ongoing substitute or alternative plan) has been made with respect to such plan, or (y) the failure by the Company to continue Employee’s
participation therein (or in such substitute or alternative plan) on a basis not materially less favorable, both in terms of the amount of benefits provided and the level of Employee’s participation relative to other participants;

  
 (v) either (x) the failure by the
Company to continue to provide Employee with benefits substantially similar to those enjoyed by Employee under any of the Company’s life insurance, medical, health and accident, or disability plans in which Employee was participating at the
time of this Agreement, or (y) the taking of any action by the Company which would directly or indirectly materially reduce any of such benefits or deprive Employee of any material fringe benefit enjoyed by Employee at the time of this Agreement, or
(z) the failure by the Company to provide Employee with the number of paid vacation days to which Employee is entitled in accordance with this Agreement;  
  
 (vi) the failure of the Company to obtain a satisfactory agreement from any successor to assume and
agree to perform this Agreement, as contemplated by Section 5.4 hereof; 
  
 (vii) the relocation of the Company’s principal executive offices to a location more than twenty-five (25) miles outside the
City of Santa Barbara, California, or the Company’s requiring Employee 

  

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to relocate anywhere other than the location of the Company’s principal executive offices, except for required travel on the Company’s business to
an extent substantially consistent with Employee’s historical business travel on behalf of the Company; 
  
 (viii) the amendment, modification or repeal of any provision of the Certificate of Incorporation, or the Bylaws of the Company
which was in effect immediately prior to time of this Agreement, if such amendment, modification or repeal would materially adversely affect Employee’s right to indemnification by the Company; or 
  
 (ix) any purported termination of Employee’s
employment by the Company that is not effected pursuant to a Notice of Termination, which purported termination shall not be effective for purposes of this Agreement.  
  
 (e) “MISCONDUCT” shall mean (i) the willful and repeated failure by
Employee to substantially perform his duties with the Company (other than any such failure resulting from Employee’s incapacity due to physical or mental illness or any such actual or anticipated failure after the issuance of a Notice of
Termination by Employee for Good Reason), after a written demand for substantial performance is delivered to Employee by the Board, which demand specifically identifies the manner in which the Board believes that Employee has not substantially
performed his duties and provides fourteen (14) days for Employee to cure, or (ii) Employee’s willfully engaging in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes hereof, no act, or
failure to act, on Employee’s part shall be deemed “willful” unless done, or omitted to be done, by Employee not in good faith and without reasonable belief that Employee’s action or omission was in the best interest of the
Company. 
  
 (f)
“NOTICE OF TERMINATION” shall mean a written notice which sets forth in reasonable detail the reason for termination of Employee’s employment, or in the case of resignation for
Good Reason, said notice must specify in reasonable detail the basis for such resignation.  
  
 4.2 TERMINATION BY COMPANY. The Company may terminate this Agreement as of the
Date of Termination: 
  
 (a)
FOR MISCONDUCT. Notwithstanding the foregoing, Employee shall not be deemed to have been terminated for Misconduct unless and until there shall have been delivered to Employee a copy of a
resolution duly adopted by the affirmative vote of not less than three-quarters of the entire membership of the Board at a meeting of the Board called and held for such purpose (after reasonable notice to Employee and an opportunity for Employee,
together with Employee’s counsel, to be heard before the Board), finding that in the good faith opinion of the Board that Employee was guilty of conduct set forth above and specifying the particulars thereof in reasonable detail, provided,
however, that if at such time Employee is a member of the Board of Directors, he shall abstain from voting with respect to any matter relating to termination of his employment. Upon termination for Misconduct, the Company shall pay to Employee
all accrued and unpaid compensation for the period ending on the Date of Termination, and shall not be obligated to pay any additional amounts to Employee hereunder. 
  
 (b) OTHER THAN MISCONDUCT OR
DISABILITY. At any time other than either for Misconduct or by reason of Employee’s Disability. Employee’s employment is at will and the Company may terminate this Agreement and Employee’s employment for any
reason deemed sufficient by the Company upon delivery of a Notice of Termination (or as of such date as is specified therein). However, in the event that Employee’s employment is terminated for any reason other than his Misconduct or
Disability, then in addition to all accrued and unpaid wages due to Employee for periods ended on or prior to the effective date of the termination:  
  
 (i) the Company shall pay to Employee an amount equal to twelve (12) months of Employee’s Base Compensation at the rate in
effect as of the Date of Termination (any such amount to be payable in equal monthly installments at the time and in the amounts due under the Company’s regular payroll practices, as if Employee had remained employed during the period of twelve
(12) months following the Date of Termination, provided, however, that the Company shall have the right, in its sole discretion, to accelerate any payment under this subsection (b)(i)); and 
  

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 (ii) the Company shall pay, for a period of twelve (12) months following the Date
of Termination, the premiums for continuation of Employee healthcare benefits pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) for so long as Employee is otherwise eligible, provided
Employee makes a timely election for such COBRA coverage. 
  
 (c) DISABILITY. By reason of Employee’s Disability. If the Company elects to terminate Employee’s employment hereunder by reason of Employee’s Disability, then for the
period equal to the shorter of twelve (12) months following the date of the termination or the period ending on the date on which Employee becomes eligible to receive disability income payments under any disability income plan sponsored by the
Company, the Company shall (i) pay to Employee an amount equal to Employee’s Base Compensation at the rate in effect as of the Date of Termination (any such amount to be payable in equal monthly installments at the time and in the amounts due
under the Company’s regular payroll practices, as if Employee had remained employed during the period over which such amount is payable hereunder), and (ii) pay the premiums for continuation of Employee healthcare benefits pursuant to COBRA for
such period, provided Employee makes a timely election for such COBRA coverage. 
  
 4.3 TERMINATION BY EMPLOYEE. Employee may resign from employment and terminate this Agreement at any time. If Employee terminates this Agreement:

  
 (a) DISABILITY.
By reason of Employee’s Disability, then in addition to all accrued and unpaid wages due to Employee for periods ended on or prior to the Termination Date, the Company thereafter shall (i) continue paying to Employee his Base Compensation
at the rate in effect as of the Date of Termination for a period ending on the earlier of (x) twelve (12) months following the date of the termination or (y) the period ending on the date on which Employee becomes eligible to receive disability
income payments under any disability income plan sponsored by the Company (any such amount to be payable in equal periodic installments at the time and in the amounts due under the Company’s regular payroll practices, as if Employee had
remained employed during such period), provided, however, that the Company shall have the right, in its sole discretion, to accelerate any such payment); and (ii) pay the COBRA premiums for continuation of Employee healthcare benefits for so
long as Employee is otherwise eligible, provided Employee makes a timely election for such COBRA coverage, for a period of twelve (12) months following the Date of Termination. Employee’s right to terminate employment pursuant to this
Section 4.3(a) shall not be affected by Employee’s incapacity due to physical or mental illness. In addition, Employee’s continued employment following any event, act or omission, regardless of the length of such continued employment,
shall not constitute Employee’s consent to, or a waiver of Employee’s rights with respect to, such event, act or omission constituting a Good Reason circumstance hereunder. 
  
 (b) GOOD REASON.
For Good Reason, then in addition to all accrued and unpaid wages due to Employee for periods ended on or prior to the Termination Date: (i) the Company shall pay to Employee an amount equal to twelve (12) months of Employee’s Base
Compensation at the rate in effect as of the Date of Termination (any such amount to be payable in equal periodic installments at the time and in the amounts due under the Company’s regular payroll practices, as if Employee had remained
employed during the period of twelve (12) months following the Date of Termination, provided, however, that the Company shall have the 

  

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right, in its sole discretion, to accelerate any payment under this subsection (b)(i)); and (ii) the Company shall pay the premiums for continuation of
Employee healthcare benefits pursuant to COBRA, provided Employee makes a timely election for such COBRA coverage, for a period of twelve (12) months following the Date of Termination. 
  
 (c) CHANGE OF
CONTROL. By reason of a Change of Control of the Company, then Employee shall be entitled to terminate his employment at any time within three (3) months following the date of such Change of Control, and in addition
to all accrued and unpaid wages due to Employee for periods ended on or prior to the Termination Date, the Company thereafter shall:  
  
 (i) pay to Employee an amount equal to twelve (12) months of Employee’s Base Compensation at the rate in effect as of the Date
of Termination (any such amount to be payable in equal periodic installments at the time and in the amounts due under the Company’s regular payroll practices, as if Employee had remained employed during the period of twelve (12) months
following the Date of Termination, provided, however, that the Company shall have the right, in its sole discretion, to accelerate any payment under this subsection (b)(i)); and 
  
 (ii) pay the COBRA premiums for continuation of
Employee healthcare benefits for so long as Employee is otherwise eligible, provided Employee makes a timely election for such COBRA coverage, for a period of twelve (12) months following the Date of Termination. Employee’s right to terminate
employment pursuant to this Section 4.3(c) shall not be affected by Employee’s incapacity due to physical or mental illness. In addition, Employee’s continued employment following any event, act or omission, regardless of the length of
such continued employment, shall not constitute Employee’s consent to, or a waiver of Employee’s rights with respect to, such event, act or omission constituting Good Reason hereunder. 
  
 (d) OTHER. Other than by reason
of Employee’s Disability, Good Reason, or a Change of Control of the Company, then the Company shall pay to Employee all accrued and unpaid wages due to Employee for periods ended on or prior to the effective date of the termination, and the
Company shall not be obligated to make any further payments to Employee hereunder. 
  
 4.4 DEATH. This Agreement shall terminate automatically upon the death of Employee. If Employee’s employment is terminated by reason of Employee’s death, then the Company shall
pay to Employee’s beneficiaries or legal representatives (i) within 15 days, all accrued and unpaid Base Compensation and vacation pay for all periods ended on or before the date of Employee’s death, and (ii) the Company shall not be
obligated to make any further payments hereunder.  
  
 4.5 MITIGATION. Employee shall not be required to mitigate the amount of any payment provided for in this Section 4 by seeking other employment or otherwise, nor shall the amount of any payment or
benefit provided for in this Agreement be reduced by any compensation earned by Employee as a result of employment by another employer, self employment earnings, by retirement benefits, by offset against any amount claimed to be owing by Employee to
the Company, or otherwise. No amounts payable to Employee under any plan or program of the Company shall reduce or offset any amounts payable to Employee under this Agreement. 
  

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 5. MISCELLANEOUS 
  
 5.1 NOTICES. All notices
permitted or required by this Agreement shall be in writing, and shall be deemed to have been delivered and received (i) when personally delivered, or (ii) on the third (3rd) business day after the date on which deposited in the United States mail, postage prepaid, certified or registered mail, return receipt requested, or (iii)
on the date on which transmitted by facsimile or other electronic means generating a receipt confirming a successful transmission (provided that on that same date a copy of such notice is deposited in the United States mail, postage prepaid,
certified or registered mail, return receipt requested), or (iv) on the next business day after the date on which deposited with a regulated public carrier (e.g., Federal Express) designating overnight delivery service with a return
receipt requested or equivalent thereof administered by such regulated public carrier, freight prepaid, and addressed in a sealed envelope to the party for whom intended at the address or facsimile number appearing on the signature page of this
Agreement, or such other address or facsimile number, notice of which is given in a manner permitted by this Section 5.1. 
  
 5.2 EFFECT ON OTHER REMEDIES. Nothing in this Agreement is
intended to preclude, and no provision of this Agreement shall be construed to preclude, the exercise of any other right or remedy which the Company may have by reason of Employee’s breach of his obligations under this Agreement. 
  
 5.3 ARBITRATION. Except for a
dispute in which any party is seeking the exercise of the equitable powers of a court, if any dispute arises under this Agreement and is not resolved within fifteen (15) days after one party delivers to each other party a written notice invoking the
arbitration provisions of this Section 5.3, then such dispute shall be resolved by arbitration in Santa Barbara, California, before a single arbitrator under the rules then obtaining of the American Arbitration Association. This agreement to
arbitrate shall be specifically enforceable. The decision of the arbitrator shall be final and binding on the parties to the dispute. 
  
 5.4 BINDING ON SUCCESSORS; ASSIGNMENT. This Agreement shall be
binding upon, and inure to the benefit of, each of the parties hereto, as well as their respective heirs, successors, assigns, and personal representatives. 
  
 5.5 GOVERNING LAW, JURISDICTION, AND VENUE. This
Agreement shall be construed in accordance with and shall be governed by the laws of the State of California, without regard to conflict of law principles. Each party consents to the jurisdiction of the courts of the State of California for the
purposes of construing or enforcing this Agreement. Subject to the arbitration provisions of Section 5.3, above, the parties agree that the exclusive venues for all such disputes shall be the Superior Court in and for the County of Santa Barbara,
California, sitting in the City of Santa Barbara, California, and hereby waive all arguments and claims that such forum is inconvenient or otherwise inappropriate. 
  
 5.6 SEVERABILITY. If any of the provisions of this Agreement shall otherwise
contravene or be invalid under the laws of any state, country or other jurisdiction where this Agreement is applicable but for such contravention or invalidity, such contravention or invalidity shall not invalidate all of the provisions of this
Agreement but rather it shall be construed, insofar as the laws of that state or other jurisdiction are concerned, as not containing the provision or provisions contravening or invalid under the laws of that state or jurisdiction, and the rights and
obligations created hereby shall be construed and enforced accordingly. 
  
 5.7 COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, taken together, shall be one and the same instrument, binding on all
the signatories. 
  

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 5.8 FURTHER ASSURANCES. Each party agrees,
upon the request of another party, to make, execute, and deliver, and to take such additional steps as may be necessary to effectuate the purposes of this Agreement. 
  
 5.9 ENTIRE AGREEMENT; AMENDMENT. This Agreement
(a) represents the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous understandings, whether written or oral, regarding the subject matter hereof, except the Mutual
Nondisclosure Agreement by and between Employee and the Company, and (b) may not be modified or amended, except by a written instrument, executed by the party against whom enforcement of such amendment may be sought. 
  
 [Signatures appear on the following page] 
  

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 IN WITNESS WHEREOF, the parties hereto have executed
this Agreement, effective as of the date set forth above. 
  

									
	“COMPANY:”	 	 	 	“EMPLOYEE:”
			
	 CALLWAVE, INC., a California corporation
	 	 	 	 
				
	By	 	/s/    DAVID S. TRANDAL        	 	 	 	/s/    DAVID F. HOFSTATTER        
	 	 	
	 	 	 	

	 	 	David S. Trandal, Secretary	 	 	 	David F. Hofstatter
					
	 	 	 	 	 	 	 	 	 
	 	 	
	 	 	 	

	 	 	Date	 	 	 	 	 	Date
	  
 Address, Facsimile No. and Email for
Notices
  
 136 West Canon Perdido Street
 Santa Barbara, California 93101
  
 Facsimile No.: (805) 690-4204
	 	 	 	  
 Address, Facsimile No. and Email for
Notices:
  
 1721 Las Canoas Road
 Santa Barbara, CA 93105
  
 Facsimile No.: (805) 690-4211