exv10w6



 





Exhibit 10.6




50 First Street-Suite 307

San Francisco, CA 94105

tel (415) 995-8570

fax (415) 995-8577

www.demandtec.com









June 1,
2001




Dan Fishback



Dear Dan:



Dan I am
personally very excited to ask you to join our team. Beyond all the important
skills and
experiences you bring to the table, you represent very well the culture we are trying to build. I
know you
will do great things here.



This letter confirms our offer to you of employment with DemandTec, Inc., a Delaware Corporation
(“the
Company”), as President and Chief Executive Officer at our facility in San Francisco. You will be
responsible for duties commensurate with this position and will report to the Board of Directors.



The
following serves as a record of initial terms of your employment:




	 	 	 
	Effective Date:

	 	June 4, 2001
	 
	 	 
	Annual

Compensation:

	 	Your annualized Base Salary, as a salaried exempt employee, shall be $150,000.
You will be paid semi-monthly. Your performance and salary will be
reviewed
annually in accordance with our salary administration policies. Any merit
increase in base salary for your first year would be based on an annualized
percentage, prorated from your date of hire.
	 
	 	 
	Contingent Bonus:

	 	In addition to your annual base salary, you also shall be eligible to earn an
annual bonus to be determined by the Board of Directors or the Compensation
Committee, initially set at $150,000 (but not limited to $150,000), paid
quarterly, based on your achievement of performance objectives determined
jointly by the Compensation Committee of the Board of Directors and you.
Such bonus, if any, shall be paid in accordance with the terms set forth by the
same committee. The Compensation Committee may also elect to change the
bonus periodically, as the company grows.
	 
	 	 
	Stock Options:

	 	So that you may participate in the Company’s success, you will be granted an
option to purchase 1,368,750 shares of the
Company’s common stock. The
exercise price of such shares shall be the fair market value of the
stock at the
time of the grant, as determined by the Company’s Board of Directors.
The
current fair market value of the Company’s common stock is $.20. The
Company has a four (4) year vesting schedule where
1/8th of these shares
vest at
the end of your first six months of employment and
1/48th of these shares
vest on
a monthly basis thereafter, subject to certain acceleration events
below.
	 
	 	 
	Subscription Right:

	 	In addition to your stock option grant, you shall be entitled to subscribe to
purchase 164,250 shares of the Series B Preferred Stock of the Company
at a
purchase price of $1.64 per share. Any such purchase shall be made
pursuant to
the Company’s standard form of Series B Preferred Stock Purchase
Agreement.






 









 






Dan Fishback

June 1, 2001

Page 2




	 	 	 
	 

	 	To exercise this subscription right, you must exercise this option within
90 days
of your employment start date with the Company.
	 
	 	 
	Vacation:

	 	Your vacation entitlement will be three weeks (15 days) per year (accrued at 10
hours per month). Please refer to the Company’s then current vacation
guidelines for further policy details.
	 
	 	 
	Benefits:

	 	You are eligible to participate in the Company’s benefit programs as described
in the enclosed summary.





As a Company employee, you will be expected to promote the goodwill and name of the Company
and to
use your best efforts to further the interests and establish the high reputation of the Company.
You shall
adhere to and comply with all Company policies, rules and directions as they currently exist and
as changed
by the Company from time to time and sign and comply with the Company’s standard Proprietary
Information and Inventions Agreement which prohibits unauthorized use or disclosure of the
Company’s
proprietary information. Without limiting the generality of the foregoing, you understand that
the
solicitation of another employee or consultant is prohibited while either person is on working
time. You also acknowledge and agree that the Company prohibits harassment of employees or consultants by
another
employee, consultant, supervisor, and third party for any reason including, but not limited to,
age, race,
color, physical or mental disability, marital status, veteran status, national origin, religion
and/or sex.



In accordance with the Immigration Reform and Control Act of 1986, the Company is required to
verify the
identity and employment eligibility of every candidate. Please review the enclosed Employment
Eligibility
Verification (1-9) form. You must supply the documents listed on the 
1-9 form to Human Resources on
you
first day of employment. This offer of employment is contingent upon your providing all the
necessary
documents on your first day of employment. The Company cannot allow you to work unless proper
documentation is supplied.



You acknowledge that your employment with the Company is for an unspecified duration that
constitutes
AT-WELL employment, and that either you or the Company can terminate this relationship at any
time,
with or without cause and with or without notice. This AT-WILL employment relationship cannot be
changed except in a writing signed by a Company officer.



Notwithstanding the foregoing, if at any time you are terminated by the Company (or, in the case
of a
merger, the surviving corporation) without “Cause” (as defined below) or you terminate your
employment
with the Company for “Constructive Termination” (as defined below) in each case within one (1)
year
following a “Corporate Transaction” (as defined below), 50% of the shares under the option that
are subject
to vesting as of the effective date of termination shall vest automatically.



For the purposes of this letter, the following capitalized terms shall have the meanings set forth
below:





	(a)	 	“Corporate Transaction” shall mean (i) a sale of substantially all of the assets of the
Company; (ii)
a merger or consolidation in which the Company is not the surviving corporation (other
than a
merger or consolidation in which shareholders immediately before the merger or
consolidation
have, immediately after the merger or consolidation, greater stock voting power); (iii) a
reverse
merger in which the Company is the surviving corporation but the shares of the Company’s
common stock outstanding immediately preceding the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash or otherwise (other
than a
reverse merger in which stockholders immediately before the merger have, immediately
after the
merger, greater stock voting power in the surviving corporation); or (iv) any transaction
or series
of related transactions in which in excess of 50% of the Company’s voting power is
transferred.






	(b)	 	“Cause” for termination shall mean: (i) your conviction of any felony or of any crime
involving
moral turpitude; (ii) your participation in any fraud against the Company; (iii) your
material





 









 





Dan Fishback

June 1, 2001

Page 3





	 	 	 	breach of the any terms of this letter, and your failure to cure such breach within
thirty (30) days
after your receipt of written notice thereof; (iv) your failure to perform your job or your
neglect of
your responsibilities, and your failure to remedy such failure or neglect within thirty
(30) days
after your receipt of written notice thereof or (iv) your intentional damage to any
material
property of the Company.
	 
	 	(c)	 	“Constructive Termination” shall mean (i) your involuntary dismissal or discharge or
discharge by
the Company for reasons other than Cause, (ii) your assignment to duties inconsistent with
your
position as Chief Executive Officer, or which reflect a material adverse change in
authority,
responsibility or status with the Company or any successor; (iii) a reduction in your base
salary or
benefits package, unless because of financial circumstances the Company reduces the base
salaries
and benefits of all executives by the same percentage; (iii) relocation of your primary
work
location (other than business travel) by more man 35 miles; or (iv) the failure of the
Company to
obtain a satisfactory agreement from any successor to the Company, or purchaser of all or
substantially all of the Company’s assets, to assume and agree to perform this letter.




In
addition, upon termination of this Agreement by the Company without Cause prior to the date four
(4)
years from your employment start date, you shall be entitled to the following severance benefits:





	(a)	 	payment, in a lump sum, of any and all base salary, as well as any bonus due to you through
the
date of termination, plus an amount equal to your earned but unused vacation through such
date;
	 
	(b)	 	continuation of your then-current base salary for a period of three (3) months after the date
of
termination; and
	 
	(c)	 	continuation of coverage under the medical, dental, life and disability insurance programs
maintained by Company to the extent such continuation thereunder is permitted under the
terms of
the insurance contracts governing such programs for a period of three (3) months after the
date of
termination or, in the alternative, reimbursement for all premiums paid to maintain medical
and
dental coverage under the continuation coverage provisions of the Consolidated Omnibus
Budget
Reconciliation Act of 1985 for a period of three (3) months after the date of termination;
and
	 
	(d)	 	continuation of your then-current stock option vesting for a period of three (3) months after
the
date of termination.




As a full-time employee, you will be expected to devote all of your employable time to performing
your
duties on behalf of the Company. Without limiting the generality of the foregoing, during the
period of
your employment, you shall not engage in any employment or business activity for a competitor of
the
Company. You will be responsible for notifying the Company of all other engagements in which you
are
involved.



This letter states the entire agreement of the parties with respect to your employment with the
Company
and supersedes and replaces all prior and contemporaneous agreements, understandings, negotiations
and
discussions, whether oral or written, of the parties and there are no warranties, representations,
understandings or other agreements between the parties in connection with the subject matter
except as
specifically set forth in this agreement and none have been relied on. This letter shall be
governed by
California law.



This offer
is valid until June 14, 2001. Please send your written acceptance of this offer, to my
attention at:




DemandTec, Inc.

50 First Street, Suite 307

San Francisco, CA 94105





 









 








Dan Fishback

June 1, 2001

Page 4



By signing below you confirm that you have not executed nor are you bound by, or a party to,
any non
compete covenant, restriction or other agreement, contractual or otherwise, with any prior or
current employer, supplier, customer or firm with which you have been associated which would prevent
you from performing the services for the Company in the capacity as stated herein, or otherwise impede
or restrict the fulfillment of the terms of this agreement with the Company.



Dan, welcome aboard. Let’s sign documents and get to work!




	 	 	 
	Your very truly,
	 	 
	 
	 	 
	/s/ Michael Neal
 



Michael Neal

	 	  
	Chairman of the Board, DemandTec, Inc.
	 	 
	 
	 	 
	ACCEPTED:
	 	 






	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	  
	SIGNATURE:

	 	/s/ Dan Fishback
	 	DATE:
	 	6/4/01	 	 
	 

	 	 
	 	 	 	 	 	 






 









 





DemandTec, Inc.




February 11, 2005




Mr. Dan Fishback




Dear Dan:




     We are pleased to inform you that on February 11, 2005, the Board of Directors of DemandTec,
Inc. (the “Company”) approved the following provisions for accelerated vesting of your option
shares. The following terms apply to all of your options granted or to be granted to you during
your employment with the Company, as well as any shares that you may have already purchased under
options previously granted to you (collectively, the “Options”).



     1. Accelerated Vesting of Shares. The Company hereby agrees that, in the event that a Change
in Control occurs while you remain employed with the Company, then you will vest in 50% of your
then unvested shares under each of the Options as of the date of the Change in Control and the
Company’s repurchase right shall lapse as to a corresponding number of shares purchasable under
each such Option. Any shares remaining unvested under each of the Options after the date of the
Change in Control shall vest and the Company’s repurchase right shall lapse in equal monthly
installments over the subsequent 12 months. The Company hereby agrees that, in the event that a
Change in Control occurs while you remain employed with the Company and you are subject to an
Involuntary Termination within 12 months after that Change in Control, then you will vest in all of
your shares under each of the Options such that you are then fully vested and the Company’s
repurchase right shall lapse as to all such shares.



     2. Severance. The provisions governing severance in your offer letter dated June 1, 2001 (the
“Offer Letter”) are hereby amended in their entirety to read as follows:



“In addition, upon termination of this Agreement by the Company without Cause, you shall be
entitled to the following severance benefits:




	(a)	 	payment, in a lump sum, of any and all base salary due and owing to you through the date of
termination, plus an amount equal to your earned but unused vacation through such date;






	(b)	 	payment, in a lump sum, of six (6) months of your then-current base salary; and
	 
	(c)	 	continuation of coverage under the medical, dental, life and disability insurance programs
maintained by Company to the extent such continuation thereunder is permitted under the terms
of the insurance contracts governing such programs for a period of six (6) months after the
date of termination or, in the alternative, reimbursement for all premiums paid to





 









 










Mr. Dan Fishback

February 11, 2005

Page 2





	 	 	maintain medical and dental coverage under the continuation coverage provisions of the
Consolidated Omnibus Budget Reconciliation Act of 1985 for a period of six (6) months after
the date of termination; and
	 
	(d)	 	continuation of your then-current stock option vesting for a period of six (6) months after
the date of termination.




However, the foregoing severance provisions will not apply unless you (a) resign as a member of the
boards of directors of the Company and all of its subsidiaries, to the extent applicable, (b) sign
a general release of claims (in a form prescribed by the Company) of all known and unknown claims
that you may then have against the Company or persons affiliated with the Company and (c) have
returned all Company property.”




Except as so modified, the Offer Letter shall remain in full force and effect.



     3. Definitions. For all purposes hereunder, the following terms shall be defined as specified
below:



          A. “Cause” shall mean (a) any breach of the Proprietary Information and Inventions Agreement
between you and the Company; (b) conviction of, or a plea of “guilty” or “no contest” to, a felony
under the laws of the United States or any State or any crime involving moral turpitude; (c) your
participation in any fraud against the Company; or (d) your intentional damage to any material
property of the Company or other gross misconduct.




          B. “Change in Control” shall mean (i) a sale, lease or other disposition of all or
substantially all of the assets of the Company, (ii) a merger or consolidation in which the Company
is not the surviving corporation, or (iii) a reverse merger in which the Company is the surviving
corporation but the shares of Common Stock outstanding immediately preceding the merger are
converted by virtue of the merger into other property, whether in the form of securities, cash or
otherwise.




          C. “Involuntary Termination” shall mean the termination of your Service by reason of: your
involuntary discharge by the Company (or the Parent or Subsidiary employing you) for reasons other
than Cause; or your voluntary resignation following the date that (i) you have been assigned to
duties which reflect a material adverse change in your authority or responsibility with the Company
or any successor, (ii) the annual rate of your base salary was reduced by the Company, or (iii) the
Company has relocated your principal place of work by a distance of 35 miles or more.




          D. Capitalized terms not defined herein shall have the meaning ascribed to such terms in the
Plan.




     4. Entire Agreement. This Agreement supersedes all prior agreements (whether verbal or
written) between you and the Company relating to the subject matter of



 









 





Mr. Dan Fishback

February 11, 2005

Page 3



acceleration of vesting of option shares on an acquisition or other change in control of the
Company. This Agreement supersedes all prior agreements (whether verbal or written), including
without limitation the Offer Letter, between you and the Company relating to the subject matter of
your rights to severance benefits in connection with a termination of employment. Each of the
option agreements evidencing Options previously granted to you shall remain in full force and
effect except to the extent necessary to give effect to the terms of this Agreement.




     5. Miscellaneous. This Agreement shall be binding upon the Company, its successors and
assigns (including, without limitation, the surviving entity or successor party resulting from the
Change in Control) and shall be construed and interpreted under the laws of the State of
California.



     Please indicate your acceptance of the foregoing by signing the enclosed copy of this letter
and returning it to the Company.



	 	 	 	 	 
	 	Very truly yours,	 
	 	 

Demandtec, Inc.

 	 
	 	By:  	/s/ Mark Culhane
 	 
	 	 	Name:  	Mark Culhane  	 
	 	 	Title:  	EVP & CFO 	 
	 



Accepted and Agreed to:




/s/ Dan Fishback                    

Dan Fishback




2/11/05                                     

Date





 










 





DemandTec, Inc.

One Circle Star Way, Suite 200

San Carlos, CA 94070




December 2, 2005




Mr. Dan Fishback




Dear Dan:




     We are pleased to inform you that on December 2, 2005, the Board of Directors of DemandTec,
Inc. (the “Company”) approved the following amendment and restatement of the letter agreement dated
February 11, 2005, between you and the Company (the “Prior Agreement”).



     1. General Rule on Accelerated Vesting. Except as provided in Section 2 below, the following
terms apply to all of the options granted or to be granted to you during your employment with the
Company, as well as any shares that you may have already purchased under options previously granted
to you (collectively, the “Options”). The Company hereby agrees that, in the event that a Change
in Control occurs while you remain employed with the Company, then you will vest in 50% of your
then unvested shares under each of the Options as of the date of the Change in Control and the
Company’s repurchase right shall lapse as to a corresponding number of shares purchasable under
each such Option. Any shares remaining unvested under each of the Options after the date of the
Change in Control shall vest and the Company’s repurchase right shall lapse in equal monthly
installments over the subsequent 12 months. The Company hereby agrees that, in the event that a
Change in Control occurs while you remain employed with the Company and you are subject to an
Involuntary Termination within 12 months after that Change in Control, then you will vest in all of
your shares under each of the Options such that you are then fully vested and the Company’s
repurchase right shall lapse as to all such shares.



     2. Special Rule for December 2, 2005 Option. Section 1 above will apply to the option granted
to you on December 2, 2005 (the “2005 Option”), except as provided in this Section 2. If the
Company, within 60 days after December 1, 2005, receives a bona fide term sheet with respect to the
acquisition (by merger, consolidation or otherwise) of the Company and such term sheet results in a
Change in Control while you remain employed with the Company, then you will vest in 25% (instead of
50%) of the then unvested shares subject to the 2005 Option as of the date of such Change in
Control and the Company’s repurchase right will lapse as to a corresponding number of shares
purchasable under the 2005 Option. Any shares remaining unvested under the 2005 Option after the
date of such Change in Control will vest, and the Company’s repurchase right will lapse, in equal
monthly installments over the subsequent 12 months. If such Change in Control occurs and you are
subject to an Involuntary Termination within 12 months after such Change in Control, then you will
vest in all of your shares under the 2005 Option such that you are then fully vested and the
Company’s repurchase



 









 





Mr. Dan Fishback

December 2, 2005

Page 2



right will lapse as
to all such shares. In the event of a Change in Control that does not result from a bona fide
term sheet received within 60 days after December 1, 2005, Section 1 above will apply to the 2005
Option.




               3. Severance. The provisions governing severance in your offer letter dated June 1, 2001 (the
“Offer Letter”), are hereby amended in their entirety to read as follows:




“In addition, if a Corporate Transaction occurs while you remain employed with the
Company and you are subject to an Involuntary Termination within 12 months after
that Corporate Transaction, you shall be entitled to the following severance
benefits:




	 	(a)	 	payment, in a lump sum, of any and all base salary due and owing to you
through the date of termination, plus an amount equal to your earned but unused
vacation through such date;	 
	 
	 	(b)	 	payment, in a lump sum, of six (6) months of your then-current base
salary; and	 
	 
	 	(c)	 	continuation of coverage under the medical, dental, life and disability
insurance programs maintained by Company to the extent such continuation
thereunder is permitted under the terms of the insurance contracts governing
such programs for a period of six (6) months after the date of termination or,
in the alternative, reimbursement for all premiums paid to maintain medical and
dental coverage under the continuation coverage provisions of the Consolidated
Omnibus Budget Reconciliation Act of 1985 for a period of six (6) months after
the date of termination.	 






If the Company terminates your employment without Cause (and not within 12 months
after a Corporate Transaction), you shall be entitled to the following severance
benefits:




	 	(a)	 	payment, in a lump sum, of any and all base salary due and owing to you
through the date of termination, plus an amount equal to your earned but unused
vacation through such date;	 
	 
	 	(b)	 	payment, in a lump sum, of six (6) months of your then-current base
salary;	 
	 
	 	(c)	 	continuation of coverage under the medical, dental, life and disability
insurance programs maintained by Company to the extent such continuation
thereunder is permitted under the terms of the insurance contracts governing
such programs for a period of six (6) months after the date of termination or,
in the alternative, reimbursement for all premiums paid to maintain medical and
dental coverage under the continuation	 




 









 











Mr. Dan Fishback

December 2, 2005

Page 3





	 	 	 	
coverage provisions of the Consolidated Omnibus Budget Reconciliation Act of
1985 for a period of six (6) months after the date of termination; and	 
	 
	 	(d)	 	continuation of your then-current stock option vesting for a period of
six (6) months after the date of termination.	 






However, the foregoing severance provisions will not apply unless you (a) resign as
a member of the boards of directors of the Company and all of its subsidiaries, to
the extent applicable, (b) sign a general release of claims (in a form prescribed by
the Company) of all known and unknown claims that you may then have against the
Company or persons affiliated with the Company and (c) have returned all Company
property.”


In addition, the definition of “Involuntary Termination” set forth in Section 4.C below shall be
incorporated in the Offer Letter. Except as so modified, the Offer Letter shall remain in full
force and effect.




     4. Definitions. For all purposes hereunder, the following terms shall be defined as specified
below:



          A. “Cause” shall mean (a) any breach of the Proprietary Information and Inventions Agreement
between you and the Company; (b) conviction of, or a plea of “guilty” or “no contest” to, a felony
under the laws of the United States or any State or any crime involving moral turpitude; (c) your
participation in any fraud against the Company; or (d) your intentional damage to any material
property of the Company or other gross misconduct.




          B. “Change in Control” shall mean (i) a sale, lease or other disposition of all or
substantially all of the assets of the Company, (ii) a merger or consolidation in which the Company
is not the surviving corporation, or (iii) a reverse merger in which the Company is the surviving
corporation but the shares of Common Stock outstanding immediately preceding the merger are
converted by virtue of the merger into other property, whether in the form of securities, cash or
otherwise.




          C. “Involuntary Termination” shall mean the termination of your Service by reason of: your
involuntary discharge by the Company (or the Parent or Subsidiary employing you) for reasons other
than Cause; or your voluntary resignation following the date that (i) you have been assigned to
duties which reflect a material adverse change in your authority or responsibility with the Company
or any successor, (ii) the annual rate of your base salary was reduced by the Company, or (iii) the
Company has relocated your principal place of work by a distance of 35 miles or more.




          D. Capitalized terms not defined herein shall have the meaning ascribed to such terms in the
Company’s 1999 Equity Incentive Plan.




 









 








Mr. Dan Fishback

December 2, 2005

Page 4




     5. Entire Agreement. This Agreement supersedes all prior agreements (whether verbal or
written) between you and the Company relating to the subject matter of acceleration of vesting of
option shares on an acquisition or other change in control of the Company, including (without
limitation) the Prior Agreement. This Agreement supersedes all prior agreements (whether verbal or
written), including without limitation the Offer Letter, between you and the Company relating to
the subject matter of your rights to severance benefits in connection with a termination of
employment. Each of the option agreements evidencing Options granted to you shall remain in full
force and effect except to the extent necessary to give effect to the terms of this Agreement.



     6. Miscellaneous. This Agreement shall be binding upon the Company, its successors and
assigns (including, without limitation, the surviving entity or successor party resulting from the
Change in Control) and shall be construed and interpreted under the laws of the State of
California.



     Please indicate your acceptance of the foregoing by signing the enclosed copy of this letter
and returning it to the Company.



	 	 	 	 	 
	 	Very truly yours,	 
	 	 	 
	 	
DemandTec, Inc.
 	 
	 	By:  	/s/ Mark Culhane
 	 
	 	 	Name:  	Mark Culhane 	 
	 	 	Title:  	EVP & CFO 	 
	 



Accepted and Agreed to:




/s/ Dan Fishback                              

Dan Fishback




12/2/05                                                  

Date