EXHIBIT
10.15


 


CONSULTING
AGREEMENT


 


This Agreement is effective as of 
the 1st of October, 2002 , by and between ULTRATECH STEPPER,
INC., a Delaware Corporation (hereinafter “UTS”) and Ellery Buchanan
(hereinafter “Consultant”).


 


The Consultant shall provide
services to UTS and be compensated by UTS in accordance with the terms and
conditions of this Agreement.  Now,
Consultant and UTS agree as follows:


 


INDEPENDENT
CONSULTANT STATUS


 


It is the express intention of the parties that Consultant is an
independent contractor and not an employee, agent, joint venturer or
partner of UTS.  Nothing in this
Agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee between UTS and Consultant or any
employee or agent of Consultant.  Both
parties acknowledge that Consultant is not an employee for state or federal tax
purposes.  Consultant shall retain the
right to perform services for others during the term of this Agreement.


 


1.                                      Character
and Extent of Service


 


(a)                                  Consultant shall
diligently perform the services set forth in the attached Schedule (s)  which
are annexed to, and made part of this Agreement.


 


(b)                                 Consultant will
determine the method, details, and means of performing the above-described
services.  UTS shall have no right to,
and shall not, control the manner or determine the method of accomplishing
Consultant’s services.


 


(c)                                  Consultant may, at
the Consultant’s own expense, employ such assistants as Consultant deems
necessary to perform the services required of Consultant by this
Agreement.  UTS may not control, direct,
or supervise Consultant’s assistants or employees in the performance of those
services.  Consultant assumes full and
sole responsibility for the payment of all compensation and expenses of those
assistants and for all state and federal income tax, unemployment insurance,
Social Security, disability insurance and other applicable withholdings.


 


(d)                                 Consultant shall
perform the services required by this Agreement at any place or location and at
such times as Consultant shall determine.


 


(e)                                  Consultant represents
that they possess the training, skills and expertise necessary to perform the
consulting services required by this Agreement in a competent and professional
manner.  Consultant shall follow UTS’s
policies, if any in order to avoid being disruptive of UTS’s personnel,  systems, procedures and working
environment.   Consultant agrees that
they shall use their training, skills and expertise to professionally and
timely satisfy the project and all subtasks and milestones thereof.


 


2.                                      Reports


 


(a)                                  Consultant shall
furnish UTS with such written reports of the services performed hereunder as
UTS shall reasonably require.


 


(b)                                 Any reports prepared
and furnished by Consultant and UTS hereunder shall be the property of UTS, may
be used by UTS without any additional charge and shall not be used by
Consultant in the performance of services for any other client.


 


3.                                      Confidential
Information


 


In addition to the terms in any separately executed non-disclosure or
confidentiality agreement, the following clauses shall also apply with respect
to Confidentiality:


 


(a)                                  “Confidential
Information” shall also mean any information owned by UTS, or acquired during
the course of performance of this Agreement including that information
developed by Consultant during the course of


 


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performance of this Agreement. 
Such information may include, by way of example:  computer programs and documentation;
technical design, manufacturing and application information; customer
information; financial information; personnel information; and new product
developments and business plans.


 


(b)                                 Specifically, with
regard to the work to be performed by the Consultant, the following is also
designated “Confidential Information:”


 


N/A


 


(c)                                  Consultant
acknowledges with respect to Confidential Information, Consultant’s
relationship to UTS is fiduciary in nature, and that Confidential Information
may be furnished, or otherwise made available to Consultant by UTS, or may be
developed by Consultant incidental to the relationship of trust and confidence
which by reason of the arrangement described herein exists between Consultant
and UTS.  The disclosure of Confidential
Information by UTS to Consultant or the acquisition or development of
Confidential Information by Consultant shall not be deemed to impair its
confidential nature.


 


(d)                                 The parties expressly
agree that in order to protect its Confidential Information, UTS shall have the
right to bring an action to enjoin the disclosure by Consultant of Confidential
Information, it being acknowledged that a suit for monetary damages alone would
be an inadequate remedy.


 


(e)                                  All originals and all
copies of any scientific or technical data, specifications, reports, papers,
articles, memoranda or any other kind of record obtained from UTS or prepared
by Consultant for work performed in connection with this Agreement shall be and
are the sole and exclusive property of UTS and shall be delivered to UTS on or
before the expiration, or earlier termination, of the Period of Service.


 


4.                                      Intellectual
Property


 


“Intellectual Property” shall include, but not be limited to
specifications, ideas, know-how, drawings, patents, copyrights, mask works,
Confidential Information and other rights of similar nature to the extent that
such rights are created or made possible by Consultant individually or acting
in concert with UTS and resulting from the consulting services provided to UTS.
Consultant will promptly disclose in writing to UTS any Intellectual Property
relating to the business of UTS made or conceived by Consultant, either alone
or in conjunction with others, resulting from being retained by UTS.  Consultant hereby assigns to UTS all right,
title and interest to any such Intellectual Property and agrees to do all
things reasonably necessary to enable UTS to secure United States and foreign
patents and any other rights relating to Intellectual Property, including the
execution of a specific assignment of title of any Intellectual Property right
to UTS.


 


5.                                      Competitive
Activities


 


Consultant will not provide information from single client projects
specifically prepared for UTS to competitors of UTS.


 


6.                                      Use
of Other Party’s Name


 


Neither party will use the name of the other party for advertising or
promotional purposes without prior written consent of such other party.  However, a party shall have the right to
make known to third parties the terms of this Agreement for purposes of
protecting or enforcing such party’s rights hereunder.


 


7.                                    Obligations
of Consultant


 


(a)                                  Consultant will
supply all tools and instruments required to perform the services under this
Agreement.  Consultant is not required
to purchase or rent any tools, equipment or services from UTS.


 


(b)                                 Consultant agrees to
hold harmless and indemnify UTS for any and all claims arising out of any
injury, disability, or death of Consultant, or of any of Consultant’s employees
or agents.  Consultant shall indemnify and
hold UTS harmless against any and all liability imposed or claimed, including
attorney’s fees and other legal expenses, arising directly or indirectly from
any act or failure of Consultant or Consultant’s assistants, employees or
agents, including all claims relating to the injury or death of any person or
damage to any property.  Consultant
agrees not to file a Workers’ Compensation claim against UTS.


 


(c)                                  Consultant shall
indemnify and hold UTS harmless for any Worker’s Compensation, “over-time”
claims, tax liability claims,  or other
claims brought or liabilities imposed against UTS by Consultant or any third
party


 


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(including governmental bodies or courts), whether relating to
Consultant’s working visa status, or any other matters involving the acts or
omissions of  Consultant.  Consultant represents that they and all of
their employees are in compliance with all Immigration laws and shall indemnify
and hold UTS harmless against violation thereof arising out of  this engagement.


 


(d)                                 Consultant agrees to
warrant their work under this Agreement for not less than one year.  Should the Consultant’s work not meet the
specifications outlined in the attached Schedule(s), at UTS’s option,
Consultant shall either correct such deficiencies within 30 days of
notification or refund an equitable amount of the fees paid.


 


(e)                                  As Consultant is not
UTS’ employee, Consultant is responsible for paying all required state and
federal taxes.  In particular:


 


•            UTS will not withhold
FICA (Social Security) from Consultant’s payments;


 


•            UTS will not make
state or federal unemployment insurance contributions on Consultant’s behalf
and Consultant shall not file an unemployment claim against UTS;


 


•            UTS will not withhold
state or federal income tax from payments to Consultant;


 


•            UTS will not make
disability insurance contributions on behalf of Consultant;


 


•            UTS will not obtain
workers’ compensation insurance on behalf of Consultant.


 


•            Upon request,
Consultant must provide proof of payment of applicable taxes.


 


8.                                      Termination


 


(a)                                  This Agreement shall
terminate automatically on the occurrence of any of the following events:


 


1.                                       Bankruptcy or
insolvency of either party;


2.                                       Sale of the
business of the Consultant


3.                                       Consultant’s
termination of employment, death, or disability of its key employee(s).


 


(b)                                 Should Consultant
default in the performance of this Agreement or materially breach any of its
provisions, UTS, at UTS’ option, may terminate this Agreement by giving written
notification to Consultant.  However, Consultant
shall be provided fourteen calendar days to cure such breach before termination
will take effect.


 


(c)                                  Should UTS default in
the performance of this Agreement or materially breach any of its provisions,
Consultant, at the Consultant’s option, may terminate this Agreement by giving
written notice to UTS.  However, UTS
shall be provided fourteen calendar days to cure such breach before termination
will take effect.


 


(d)                                 Should changes in
business circumstances result in UTS no longer requiring the services of
Consultant, UTS shall have the right to terminate the Agreement at will with 30
days notice to Consultant.  The work
schedule during this 30 day period and the associated payment must be mutually
agreed upon in writing by both parties.  
In no event shall such payment exceed the average of the previous
monthly fees, nor the fees as defined in the applicable Schedule or Amendment.


 


(e)                                  UTS’s entire
liability and obligation under this Agreement in the event of a termination of
this Agreement shall not exceed payment for services actually performed up to,
and including, the date of termination.


 


(f)                                    Should this
Agreement terminate for any reason, the confidentiality obligations and the
related agreements set forth herein shall not terminate.


 


9.                                      Assignment


 


This Agreement and any compensation payable hereunder to Consultant
shall not be assignable by Consultant without the prior written consent of UTS.


 


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10.                               Notices


 


All notices required or permitted under this Agreement shall be in
writing and shall be deemed given when deposited with the United States Postal
Service, postage prepaid, registered or certified, return receipt requested,
and address as follows:


 


	
   

  	
  If to UTS:

  	
  If to Consultant:

  
	
   

  	
   

  	
   

  
	
   

  	
  Contracts Manager

  	
   

  
	
   

  	
  Ultratech Stepper, Inc.

  	
  Ellery Buchanan

  
	
   

  	
  3050 Zanker Road

  	
  2907 Navidad Cove

  
	
   

  	
  San Jose, CA 95134

  	
  Austin, TX 78735

  



 


or to such address as either party may designate by notice hereunder to
the other.


 


11.                               Severability


 


If any provision or part of a provision of this Agreement is finally
declared to be invalid by any tribunal of competent jurisdiction, such part
shall be deemed automatically adjusted, if possible, to conform to the
requirements for validity; but, if such adjustment is not possible, it shall be
deemed deleted from this Agreement as though it had never been included
herein.  In either case, the balance of
any such provision and of this Agreement shall remain in full force and effect.


 


12.                               Survival


 


The expiration or earlier termination of the Period of Service shall
not relieve the parties of any obligations under this Agreement except
Consultant’s obligation to perform further services for UTS, and UTS’
obligation to pay for any such further services.  All of the parties’ other obligations under this Agreement shall
survive such expiration or earlier termination of the Period of Service.


 


13.                             General
Provisions


 


(a)                                  The Non-disclosure
Agreement dated October 1, 2002  and any
Schedules referencing this Agreement are hereby made part of this
Agreement.  This Agreement supersedes
any and all agreements, either oral or written, between the parties hereto with
respect to the rendering of services by Consultant for UTS and contains all the
covenants and agreements between the parties with respect to the rendering of
such services in any manner whatsoever. 
Each party to this Agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by
any party, or anyone acting on behalf of any party, which are not embodied
herein, and that no other agreement, statement, or promise not contained in
this Agreement shall be valid or binding. 
Any modification of this Agreement will be effective only if it is in
writing signed by the party to be charged.


 


(b)                                 Any controversy or
claim arising out of this Agreement shall be settled by binding arbitration in
accordance with the expedited Commercial Arbitration Rules of the American
Arbitration Association and judgment upon the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction.


 


(c)                                  If any action at law
or in equity, including arbitration or an action for declaratory relief, is
brought to enforce or interpret the provisions of this Agreement, the
prevailing party will be entitled to reasonable attorneys’ fees, which may be
set by the arbitrator or court in the same action or in a separate action
brought for that purpose, in addition to any other relief to which that party
may be entitled.


 


(d)                                 This Agreement will be
governed by and construed in accordance with the laws of the State of
California.


 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.


 


	
   

  	
  /s/ Ellery Buchanan

  	
   

  	
  Ultratech Stepper,
  Inc.

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
  Director, Human Resources

  	
   

  
	
   

  	
   

  	
   

  
	
  Printed Name:

  	
   

  	
   

  	
  Name:

  	
  /s/ Heidi Ordwein

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  	 

															



 


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SCHEDULE
No. 1 TO CONSULTING AGREEMENT - CONTROL NO. 294


 


This Schedule (“Schedule”) is effective as of October 1, 2002 and
hereby amends the Consulting Agreement 
(“Agreement”) by and between Ultratech Stepper, Inc. (hereinafter “UTS”)
and Ellery Buchanan hereinafter (“Consultant”) dated October 1, 2002 to include
the following terms:


 


1.                                      Exhibit A
- Services to be Performed


 


Consultant shall diligently perform the services set forth in Exhibit
A  which is annexed to, and made part of
this Schedule.


 


2.                                      Period
of Service


 


The service to be performed by Consultant hereunder shall commence on
October 1, 2002 and shall be completed as of October 1, 2003.  That period together with any extensions
agreed to in writing by UTS is hereinafter referred to as the “Period of
Service”.


 


3.                                      Fee/Expenses


 


(a)                                  UTS shall pay the
Consultant  at a rate of $  125.00 per hour multiplied by the actual
number of hours authorized and worked which will in no event exceed $
60,000.00, for rendering and completing services under this Agreement .  Such authorization shall be at the sole
discretion of UTS.  When performing work
in accordance with this Agreement, Consultant will not work more than 8 hours
per day or 40 hours per week.  Invoices
that exceed 8 hours per day or 40 hours per month will not be approved nor
paid.   Consultant shall submit invoices
no more often than monthly.  Payment
shall be due net 30 days from the date of invoice.


 


(b)                                 Any travel or lodging arrangements
required by Consultant in connection with Consultant’s assignment with UTS, and
to be reimbursed by UTS, must have UTS’s prior approval and must be arranged by
UTS’s travel agent, Antelope Travel 
(408) 325-6153.  Consultant must
provide Antelope Travel with a credit card number to be used for prepaying
travel costs.  Consultant must then
submit Antelope Travel’ s expenses to UTS in order to be reimbursed.  No airline, rental car or hotel expenses
shall be paid by UTS unless arranged through Antelope Travel.


 


(c)                                  Consultant shall be
responsible for all indirect costs and expenses incident to the performance of
services for UTS, including, but not limited to, all costs of equipment
provided by Consultant, all fees, fines, licenses, bonds or taxes required of
or imposed against Consultant and all other of Consultant’s costs of doing
business.  UTS shall be responsible for
no indirect expenses incurred by Consultant in performing services for UTS.


 


Additionally, consultant represents that it is an independent
contractor and not an employee, agent, joint venturer or partner of UTS.


 


 


IN WITNESS WHEREOF, the parties have executed this Schedule and amended
the Agreement as of the effective date of this Schedule.


 


	
   

  	
  /s/ Ellery Buchanan

  	
   

  	
   

  	
  Ultratech Stepper,
  Inc.

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
  Director, Human Resources

  	
   

  
	
   

  	
   

  	
   

  
	
  Printed Name:

  	
   

  	
   

  	
  Name:

  	
  s/s Heidi Ordwein

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
														



 


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