Exhibit
10.9


 


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 covenants
contained in this Agreement, the parties agree as follows:


 


1.                                       Employment Duties.  Employer agrees to employ Employee in the
position of Senior Vice President and General
Manager of Xiran, beginning on November 11, 2002, and Employee
agrees to serve in that position or in such other positions as Employee may be
assigned 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 duties
as are assigned from time to time by Employer. 
In connection with Employee’s employment by Employer, Employee shall be
based at Employer’s place of business 17770 Cartwright Road, Suite 200, Irvine,
California.


 


2.                                       Time and Effort, Exclusivity of
Employment. 
Employee shall faithfully, honestly and diligently serve Employer,
devote all of Employee’s working time, attention, knowledge and skill to
Employee’s employment hereunder and use Employee’s best efforts to promote the
business and interests of Employer and to perform the duties and
responsibilities that are assigned to Employee.  Employer shall be entitled to all of the benefits and profits
arising from or incident to the duties of Employee pursuant to this Agreement.  During Employee’s employment, Employee shall
not, directly or indirectly, engage or participate in any business that is in
competition in any manner whatsoever with the business of Employer.


 


3.                                       Compensation.  As compensation for the services to be
rendered by Employee, Employer shall pay Employee in equal semi-monthly
installments of $ see offer letter (less normal withholding for state
and federal income taxes and employee portions of FICA, SDI, and any other
required or Employee-authorized deductions), together with such additional
terms of compensation, if any, as set forth in Employee’s employment offer
letter and/or in this Agreement. 
Employee shall also be entitled to participate in such employee benefit
programs as may be offered from time to time by Employer, subject to the terms
and eligibility requirements established by Employer for such programs.  The parties contemplate that compensation
adjustments and changes in benefits, may be made from time to time at the
discretion of Employer.  Such
adjustments shall be incorporated into and form a part of this Agreement.


 


4.                                       Term and Termination.  Employee’s employment under this Agreement
is for no specified period of time and shall continue until terminated by
either party.  Employee’s employment
with Employer is “at will,” meaning that either Employee or Employer may
terminate the employment relationship at any time on notice to the other, with
or without cause, for any reason or no reason, and with no liability of
Employer to Employee other than for wages accrued to the date of termination.  Employer may also discipline, demote or
alter the terms of employment of Employee at any time, with or without cause or
advance notice.


 

















 


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


 


6.                                       Employee Nondisclosure and Invention
Assignment 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, by
the provisions of the Employer’s Employee Nondisclosure and Invention
Assignment Agreement, a copy of which is attached hereto as Exhibit “A.”  Employee represents and warrants to the Employer
that he has returned all property and confidential information belonging to any
prior employers.  Employee’s execution
of the Employee Nondisclosure and Invention Assignment Agreement is an express
condition precedent to Employee’s commencement of employment with Employer.


 


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


 


8.                                       Remedies.  Employee acknowledges that a breach or
threatened breach by Employee of the provisions of Sections 6 and 7 of this
Agreement, and Sections 2 and 4 of the Employee Nondisclosure and Invention
Assignment Agreement will result in Employer and its affiliates suffering
irreparable harm which cannot be calculated or fully or adequately compensated
by recovery of damages alone. 
Accordingly, Employee agrees that Employer shall be entitled to temporary
and permanent injunctive relief, specific performance and other equitable
remedies, in addition to any other relief to which Employer may become
entitled.


 


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


 


	
  (a)

  	
   

  	
  If to
  Employer:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SimpleTech, Inc.

  3001 Daimler St.

  Santa Ana, CA  92705

  Attn:  Human Resources Dept.

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  If to
  Employee:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


2

















 


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


 


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


 


11.                                 Entire Agreement, Amendment, Waiver.  This Agreement, together with the Employee
Nondisclosure and Invention Assignment Agreement and the Employee’s employment
offer letter, if any, to Employee (each of which is incorporated herein),
constitute the entire agreement between the parties with respect to the subject
matter contained in such documents, and supersede all prior agreements relating
to the same subject matter.  There are
no other representations, warranties, conditions, agreements or
acknowledgments, which form a part of or affect this Agreement.  Except as provided in this Agreement, no
waiver or termination shall be binding unless accepted in writing by both
parties.  No waiver of any provision of
this Agreement shall constitute a waiver of any other provision and no waiver
of any provision of this Agreement shall constitute a continuing waiver unless
otherwise expressly provided.


 


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


 


13.                                 Binding Arbitration.  Employer and Employee agree to submit to
final and binding arbitration before J•A•M•S/ENDISPUTE in Orange County,
California, all past, present, and future claims or disputes in any way arising
out of or relating to Employee’s employment with Employer, including, without
limitation (except as expressly excluded below in this Section), any claims or
disputes concerning the separation of that employment; any other adverse
personnel action by Employer; any claims by Employee against Employer, or by
Employer against Employee, arising out of or related to any federal, state or
local law, statute or regulation prohibiting employment discrimination or
harassment; any public policy, and any other claim for personal, emotional,
physical or economic injury (individually or collectively, “Covered
Claims”).  The only claims or disputes
excluded 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 its
own arbitration procedure; and any claim by Employer for equitable relief,
including but not limited to, a temporary restraining order, preliminary
injunction or permanent injunction against Employee.  The arbitration shall be conducted in accordance with the
then-existing Rules and Procedures of J•A•M•S/ENDISPUTE for Arbitration of Employment
Disputes, except that the mediation and optional appeal procedures of
J•A•M•S/ENDISPUTE shall not be required. 
The Arbitrator shall not have the power to commit errors of law or legal
reasoning, or to grant relief, which would not be legally available in a
California court.


 


3

















 


This agreement to submit all Covered Claims to binding arbitration in
no way alters Employee’s at-will employment with Employer and does not require
Employer to provide Employee with any type of progressive discipline.


 


14.                                 Attorney’s Fees and Costs.  Should any legal action (other than binding
arbitration under Section 13 above, in which each party shall bear its, his or
her own fees and costs) be required to resolve any dispute over the meaning or
enforceability of this Agreement or to enforce the terms of this Agreement, the
prevailing party shall be entitled to recover its, his or her reasonable
attorneys’ fees and costs incurred in such action, in addition to any other
relief to which that party may be entitled.


 


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


 


16.                                 Acknowledgments and Representations.  Employee acknowledges, represents and agrees
that:


 


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


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


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


 


IN WITNESS WHEREOF, the parties have
executed 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

  	
   

  	
   

  	
   

  
							



 


4

















 


[LETTERHEAD OF
SIMPLETECH]


 


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 Senior
Vice President and General Manager of Xiran, reporting to Mark Moshayedi and
the undersigned.  Your initial base
salary will be $10,416.67 semi-monthly which is equivalent to $250,000.00 annually.  After Xiran becomes profitable, your salary
will be increased to $350,000.00 annually. 
For days worked from the 1st through the 15th of
the month, you will be paid on the 20th day of the same month.  For days worked from the 16th
through the last day of the month, you will be paid on the 5th day
of the following month.


 


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


 


Restricted Stock Option Grant


 


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


 


Medical
and Dental


 


Medical and dental benefits will be extended to you the first day of
the  month
followingcommencement of employment. 
SimpleTech pays 100% of the employee premium for the standard medical
and dental plans.  You will be
responsible for any extra coverage that you select.


 


401(k)
Profit Sharing Plan


 


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


 


5

















 


Employee Stock Purchase Plan


 


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


 


Paid
Time-Off


 


You will accrue vacation time at a rate of 6.66 hours every
semi-monthly pay period, which is equivalent to twenty days per 12-month
period. After five years of employment, you will accrue vacation at the rate of
8.32 hours every semi-monthly pay period, which is equivalent to twenty-five
days 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 six
months’ initial salary) and fully vest 37,500 shares of your stock option grant
provided such termination is based on other than for cause as described in Schedule
A below.  You will not be eligible for
severance after completing the first year of employment.


 


In the event SimpleTech or its Xiran division is sold, discontinued, or
there is a change in ownership, and if the new owners terminate your employment
without cause, all of your remaining stock options that were granted at the
beginning of your employment will immediately vest.


 


Additional
Benefits


 


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


 


*    *    *    *    *


 


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


 


6

















 


This offer will remain open until November 8, 2002, and is contingent
upon your passing a background investigation and drug screen which SimpleTech
conducts on all prospective new employees and establishing a mutually
acceptable start date.  To confirm your
acceptance of this offer, please sign and return a copy of this letter to Human
Resources by facsimile [(949) 476-0852] or mail. We look forward to your
acceptance of our offer and having you join the SimpleTech team.  If you have any questions, please feel free
to 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 November
11, 2002.


 


 


	
  /s/ THOMAS A. BEAVER

  	
   

  	
  November 11, 2002

  	
   

  
	
  Signature

  	
  Date

  



 


7

















 


SCHEDULE A


 


 


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


 


8