**Exhibit10.9**

 

**SIMPLETECH, INC.EMPLOYMENT AGREEMENT**

 

**THIS AGREEMENT** is dated November 11, 2002,between SimpleTech, Inc. (“Employer”), a California Corporation, and Thomas A.Beaver (“Employee”).

 

In consideration of the mutual promises and covenantscontained in this Agreement, the parties agree as follows:

 

# 1.                                       **Employment Duties****.**  Employer agrees to employ Employee in theposition of Senior **Vice President and GeneralManager of Xiran**, beginning on November 11, 2002, and Employeeagrees to serve in that position or in such other positions as Employee may beassigned from time to time by Employer. In such initial position, Employee shall report to Manouch Moshayedi or,to such other person as management designates. Employee shall have such dutiesas are assigned from time to time by Employer. In connection with Employee’s employment by Employer, Employee shall bebased at Employer’s place of business 17770 Cartwright Road, Suite 200, Irvine,California.

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# 2.                                       **Time and Effort, Exclusivity ofEmployment****.** Employee shall faithfully, honestly and diligently serve Employer,devote all of Employee’s working time, attention, knowledge and skill toEmployee’s employment hereunder and use Employee’s best efforts to promote thebusiness and interests of Employer and to perform the duties andresponsibilities that are assigned to Employee.  Employer shall be entitled to all of the benefits and profitsarising from or incident to the duties of Employee pursuant to this Agreement.  During Employee’s employment, Employee shallnot, directly or indirectly, engage or participate in any business that is incompetition in any manner whatsoever with the business of Employer.

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# 3.                                       **Compensation****.**  As compensation for the services to berendered by Employee, Employer shall pay Employee in equal semi-monthlyinstallments of $ see offer letter (less normal withholding for stateand federal income taxes and employee portions of FICA, SDI, and any otherrequired or Employee-authorized deductions), together with such additionalterms of compensation, if any, as set forth in Employee’s employment offerletter and/or in this Agreement. Employee shall also be entitled to participate in such employee benefitprograms as may be offered from time to time by Employer, subject to the termsand eligibility requirements established by Employer for such programs.  The parties contemplate that compensationadjustments and changes in benefits, may be made from time to time at thediscretion of Employer.  Suchadjustments shall be incorporated into and form a part of this Agreement.

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# 4.                                       **Term and Termination****.**  Employee’s employment under this Agreementis for no specified period of time and shall continue until terminated byeither party.  Employee’s employmentwith Employer is “at will,” meaning that either Employee or Employer mayterminate the employment relationship at any time on notice to the other, withor without cause, for any reason or no reason, and with no liability ofEmployer to Employee other than for wages accrued to the date of termination.  Employer may also discipline, demote oralter the terms of employment of Employee at any time, with or without cause oradvance notice.

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# 5.                                       **Observance of Rules and Regulations****.**  Employee agrees to abide by all Employer’spolicies, rules and regulations as adopted or amended from time to time byEmployer in its discretion.

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# 6.                                       **Employee Nondisclosure and InventionAssignment Agreement****.** Employee’s employment is subject to the requirement that Employee sign,observe, and agree to be bound, both during and after Employee’s employment, bythe provisions of the Employer’s Employee Nondisclosure and InventionAssignment Agreement, a copy of which is attached hereto as Exhibit “A.”  Employee represents and warrants to the Employerthat he has returned all property and confidential information belonging to anyprior employers.  Employee’s executionof the Employee Nondisclosure and Invention Assignment Agreement is an expresscondition precedent to Employee’s commencement of employment with Employer.

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# 7.                                       **Non-Solicitation****.**  Employee shall not, either during Employee’semployment by Employer or for a period of one (1) year thereafter, directly orindirectly, solicit, induce or attempt to induce any of the employees ofEmployer or any of its affiliates, to leave their employment.

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# 8.                                       **Remedies****.**  Employee acknowledges that a breach orthreatened breach by Employee of the provisions of Sections 6 and 7 of thisAgreement, and Sections 2 and 4 of the Employee Nondisclosure and InventionAssignment Agreement will result in Employer and its affiliates sufferingirreparable harm which cannot be calculated or fully or adequately compensatedby recovery of damages alone. Accordingly, Employee agrees that Employer shall be entitled to temporaryand permanent injunctive relief, specific performance and other equitableremedies, in addition to any other relief to which Employer may becomeentitled.

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# 9.                                       **Notices****.**  Any notice or other communication requiredor permitted to be given under this Agreement shall be in writing and shall begiven by prepaid first class mail, or by hand-delivery.  Any such notice or other communication, ifmailed by prepaid first class mail shall be deemed to have been received on thefourth business day after the postmarked date, or if delivered by hand, shallbe deemed to have been received by Employer at the time it is delivered to theapplicable address noted below or by Employee at the time it is received byEmployee or at the time it is delivered to the applicable address noted below.  Notices and other communications shall beaddressed as follows:

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| (a)    |   | If to  Employer:                                                                                 |
|--------|--------|--------------------------------------------------------------------------------------------------|
|   |   |                                                                                             |
|   |   | SimpleTech, Inc.  3001 Daimler St.  Santa Ana, CA  92705  Attn:  Human Resources Dept. |
|   |   |                                                                                             |
| (b)    |   | If to  Employee:                                                                                 |
|   |   |                                                                                             |
|   |   |                                                                                             |   |
|   |   |                                                                                             |   |
|   |   |                                                                                             |   |

 

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Either party may change its address for the purposes of this Agreementby giving written notice of such change to the other party.

 

# 10.                                 **Invalidity of Provisions****.**  If any provision of this Agreement should bedeclared to be void or unenforceable by a court of competent jurisdiction fromwhich no further appeal lies or is taken, that provision shall be deemed to besevered from this Agreement and the remaining provisions shall not be affectedand shall remain valid and enforceable.

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# 11.                                 **Entire Agreement, Amendment, Waiver****.**  This Agreement, together with the EmployeeNondisclosure and Invention Assignment Agreement and the Employee’s employmentoffer letter, if any, to Employee (each of which is incorporated herein),constitute the entire agreement between the parties with respect to the subjectmatter contained in such documents, and supersede all prior agreements relatingto the same subject matter.  There areno other representations, warranties, conditions, agreements oracknowledgments, which form a part of or affect this Agreement.  Except as provided in this Agreement, nowaiver or termination shall be binding unless accepted in writing by bothparties.  No waiver of any provision ofthis Agreement shall constitute a waiver of any other provision and no waiverof any provision of this Agreement shall constitute a continuing waiver unlessotherwise expressly provided.

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# 12.                                 **Governing Law and Forum Selection****.**  This Agreement shall be governed by, andinterpreted and enforced in accordance with, the laws of the State ofCalifornia (excluding any conflict of law, rule or principle, which might refersuch construction to the laws of another jurisdiction).  Employer and Employee irrevocably submit tojurisdiction of the courts of Orange County, California, for the purpose ofobtaining an order to compel submission to binding arbitration pursuant toSection 13 below.

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# 13.                                 **Binding Arbitration****.**  Employer and Employee agree to submit tofinal and binding arbitration before J•A•M•S/ENDISPUTE in Orange County,California, all past, present, and future claims or disputes in any way arisingout of or relating to Employee’s employment with Employer, including, withoutlimitation (except as expressly excluded below in this Section), any claims ordisputes concerning the separation of that employment; any other adversepersonnel action by Employer; any claims by Employee against Employer, or byEmployer against Employee, arising out of or related to any federal, state orlocal law, statute or regulation prohibiting employment discrimination orharassment; any public policy, and any other claim for personal, emotional,physical or economic injury (individually or collectively, “CoveredClaims”).  The only claims or disputesexcluded from binding arbitration under this Agreement are the following:  any claim by Employee for workers’compensation benefits or for benefits under an Employer plan that provides itsown arbitration procedure; and any claim by Employer for equitable relief,including but not limited to, a temporary restraining order, preliminaryinjunction or permanent injunction against Employee.  The arbitration shall be conducted in accordance with thethen-existing Rules and Procedures of J•A•M•S/ENDISPUTE for Arbitration of EmploymentDisputes, except that the mediation and optional appeal procedures ofJ•A•M•S/ENDISPUTE shall not be required. The Arbitrator shall not have the power to commit errors of law or legalreasoning, or to grant relief, which would not be legally available in aCalifornia court.

 

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This agreement to submit all Covered Claims to binding arbitration inno way alters Employee’s at-will employment with Employer and does not requireEmployer to provide Employee with any type of progressive discipline.

 

# 14.                                 **Attorney’s Fees and Costs****.**  Should any legal action (other than bindingarbitration under Section 13 above, in which each party shall bear its, his orher own fees and costs) be required to resolve any dispute over the meaning orenforceability of this Agreement or to enforce the terms of this Agreement, theprevailing party shall be entitled to recover its, his or her reasonableattorneys’ fees and costs incurred in such action, in addition to any otherrelief to which that party may be entitled.

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# 15.                                 **No Assignment****.**  This Agreement and all rights andobligations of Employee hereunder are personal to Employee and may not betransferred or assigned by Employee at any time.  The Employer may assign its rights under this Agreement to anyentity that assumes the Employer’s obligations hereunder in connection with anysale or transfer of all or a substantial portion of the Employer’s assets tosuch entity.

 

# 16.                                 **Acknowledgments and Representations****.**  Employee acknowledges, represents and agreesthat:

 

### (a)                                  Employee has read and understandsthe terms of this Agreement and Employee’s obligations hereunder, and Employeeagrees to abide by the terms of this Agreement;

### (b)                                 Employer has made no promises orrepresentations concerning future promotions, compensation, or other terms andconditions of employment other than as expressly stated in this Agreement; and,

### (c)                                  By accepting employment under thisAgreement, Employee has not relied upon or been induced to accept employmentwith Employer on the basis of any such promises or representations.

 

**IN WITNESS WHEREOF,** the parties haveexecuted this Agreement.

 

**EMPLOYEE**

 

 
| /s/ THOMAS A. BEAVER  |                        | November 11, 2002 |   |
|-----------------------|-----------------------------|-------------------|--------|
| Signature             |                        | Date              |
|                  |                        |              |
|                  |                        |              |
| **SIMPLETECH,  INC.** |                        |              |
|                  |                        |              |
| By:                   | /s/ CAROLYN HOFFMAN         |              | Name:  | Carolyn Hoffman |
|                  |                        |              |   |   |
| Title:                | Director of Human Resources |              |   |   |
|                       |                             |                   |        |  |  |  |

 

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[LETTERHEAD OFSIMPLETECH]

 

November 6, 2002

 

Mr. Thomas A. Beaver

234 Monarch Bay Drive

Dana Point, CA 92629

 

Dear Tom:

 

I am very pleased to extend you an offer to join SimpleTech as a SeniorVice President and General Manager of Xiran, reporting to Mark Moshayedi andthe undersigned.  Your initial basesalary will be $10,416.67 semi-monthly which is equivalent to $250,000.00 annually.  After Xiran becomes profitable, your salarywill be increased to $350,000.00 annually. For days worked from the 1st through the 15th ofthe month, you will be paid on the 20th day of the same month.  For days worked from the 16ththrough the last day of the month, you will be paid on the 5th dayof the following month.

 

As a SimpleTech employee, you will be eligible to participate in allcurrent employee benefit and incentive programs as described below.

 

**Restricted Stock Option Grant**

 

You will be granted a stock option to purchase 150,000shares of SimpleTech common stock at an exercise price equal to the closingprice of SimpleTech common stock as reported on the Nasdaq national market onthe date of your grant.  The option willbecome exercisable in a series of annual installments over a four-year periodof service measured from your grant date. Your grant will be made as soon aspossible following your commencement of employment.  The terms of your grant will be more fully described in theoption documentation available to you on-line shortly after your grant iseffective.  After Xiran becomesprofitable, you will receive an additional 100,000 options exercisable in aseries of annual installments over a four year period and priced at the time ofthe grant.

 

**Medicaland Dental**

 

Medical and dental benefits will be extended to you the first day ofthe**monthfollowingcommencement of employment. SimpleTech pays 100% of the employee premium for the standard medicaland dental plans.  You will beresponsible for any extra coverage that you select.

 

**401(k)Profit Sharing Plan**

 

After completing six months of service, you will be eligible toparticipate in the SimpleTech 401(k) Profit Sharing Plan.  You may invest up to 75% of your pay in theplan on a pre-tax basis, up to a maximum of $11,000.00 annually.  SimpleTech will match 50% of yourcontribution to the plan each semi-monthly pay period up to the annual maximumof $11,000.00.  Vesting for the companycontribution occurs over a six-year period. The 401(k) Profit Sharing Plan is subject to all applicable federal taxregulations.  Further informationregarding the plan may be found in the Summary Plan Description.

 

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**Employee Stock Purchase Plan**

 

SimpleTech’s Stock Purchase Program allows regular full-time employeesthe opportunity to acquire shares of SimpleTech common stock at periodicintervals through accumulated payroll deductions.  These deductions will be applied at semiannual intervals topurchase shares of common stock at a discount from the then-current marketprice.

 

**PaidTime-Off**

 

You will accrue vacation time at a rate of 6.66 hours everysemi-monthly pay period, which is equivalent to twenty days per 12-monthperiod. After five years of employment, you will accrue vacation at the rate of8.32 hours every semi-monthly pay period, which is equivalent to twenty-fivedays per 12-month period.  In addition,you will accrue five sick days annually and one personal day every six months.

 

**Severance**

 

If you are terminated during the first year of your employment,SimpleTech will pay you a severance payment of $125,000.00 (equivalent to sixmonths’ initial salary) and fully vest 37,500 shares of your stock option grantprovided such termination is based on other than for cause as described in ScheduleA below.  You will not be eligible forseverance after completing the first year of employment.

 

In the event SimpleTech or its Xiran division is sold, discontinued, orthere is a change in ownership, and if the new owners terminate your employmentwithout cause, all of your remaining stock options that were granted at thebeginning of your employment will immediately vest.

 

**AdditionalBenefits**

 

SimpleTech provides short-term and long-term disability insurance,travel accident insurance, and a $20,000.00 life/accidental death anddismemberment insurance policy for all employees.

 

*    *    *    *    *

 

In consideration of this offer of employment, you agree to complete andreturn the necessary documentation in order to complete your personnel filewith SimpleTech.  You also acknowledgethat your employment with SimpleTech is “at will.”  You recognize that both SimpleTech and you have the right toterminate your employment at any time, with or without advance notice, and withor without cause.  This offer letter,and the “Employment Agreement” constitute the entire agreement betweenSimpleTech and you concerning your terms and conditions of employment and youremployee relationship with SimpleTech.

 

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This offer will remain open until November 8, 2002, and is contingentupon your passing a background investigation and drug screen which SimpleTechconducts on all prospective new employees and establishing a mutuallyacceptable start date.  To confirm youracceptance of this offer, please sign and return a copy of this letter to HumanResources by facsimile [(949) 476-0852] or mail. We look forward to youracceptance of our offer and having you join the SimpleTech team.  If you have any questions, please feel freeto call me at (949) 476-1180.

 

Sincerely,

 

 
| /s/ MANOUCH MOSHAYEDI |   |
|-----------------------|--------|
| Manouch Moshayedi     |
| CEO                   |

 

 

**Acceptance**

 

I accept the terms of this offer and will report to work on November11, 2002.

 

 
| /s/ THOMAS A. BEAVER |   | November 11, 2002 |   |
|----------------------|--------|-------------------|--------|
| Signature            | Date   |

 

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**SCHEDULE A**

 

 

For purposes of this Employment Offer Letter, “cause”shall mean i) any act of dishonesty on your part in connection with yourresponsibilities as an employee of SimpleTech, ii) your commission of a felonyor an act of fraud against SimpleTech, iii) a willful act by you thatconstitutes gross misconduct, or iv) continued violations by you of youremployment duties or responsibilities to SimpleTech, which are willful anddeliberate.

 

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