**EXHIBIT10.15**

 

**CONSULTINGAGREEMENT**

 

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 provideservices to UTS and be compensated by UTS in accordance with the terms andconditions of this Agreement.  Now,Consultant and UTS agree as follows:

 

**INDEPENDENTCONSULTANT STATUS**

 

It is the express intention of the parties that Consultant is anindependent contractor and **not** an employee, agent, joint venturer orpartner of UTS.  Nothing in thisAgreement shall be interpreted or construed as creating or establishing therelationship of employer and employee between UTS and Consultant or anyemployee or agent of Consultant.  Bothparties acknowledge that Consultant is not an employee for state or federal taxpurposes.  Consultant shall retain theright to perform services for others during the term of this Agreement.

 

**1.****                                      Characterand Extent of Service**

 

(a)                                  Consultant shalldiligently perform the services set forth in the attached Schedule (s)****whichare annexed to, and made part of this Agreement.

 

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

 

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

 

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

 

(e)                                  Consultant representsthat they possess the training, skills and expertise necessary to perform theconsulting services required by this Agreement in a competent and professionalmanner.  Consultant shall follow UTS’spolicies, if any in order to avoid being disruptive of UTS’s personnel,  systems, procedures and workingenvironment.   Consultant agrees thatthey shall use their training, skills and expertise to professionally andtimely satisfy the project and all subtasks and milestones thereof.

 

**2.****                                      Reports**

 

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

 

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

 

**3.****                                      ConfidentialInformation**

 

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

 

(a)                                  “ConfidentialInformation” shall also mean any information owned by UTS, or acquired duringthe course of performance of this Agreement including that informationdeveloped 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; customerinformation; financial information; personnel information; and new productdevelopments and business plans.

 

(b)                                 Specifically, withregard to the work to be performed by the Consultant, the following is alsodesignated “Confidential Information:”

 

N/A

 

(c)                                  Consultantacknowledges with respect to Confidential Information, Consultant’srelationship to UTS is fiduciary in nature, and that Confidential Informationmay be furnished, or otherwise made available to Consultant by UTS, or may bedeveloped by Consultant incidental to the relationship of trust and confidencewhich by reason of the arrangement described herein exists between Consultantand UTS.  The disclosure of ConfidentialInformation by UTS to Consultant or the acquisition or development ofConfidential Information by Consultant shall not be deemed to impair itsconfidential nature.

 

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

 

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

 

**4.****                                      IntellectualProperty**

 

“Intellectual Property” shall include, but not be limited tospecifications, ideas, know-how, drawings, patents, copyrights, mask works,Confidential Information and other rights of similar nature to the extent thatsuch rights are created or made possible by Consultant individually or actingin concert with UTS and resulting from the consulting services provided to UTS.Consultant will promptly disclose in writing to UTS any Intellectual Propertyrelating to the business of UTS made or conceived by Consultant, either aloneor 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 allthings reasonably necessary to enable UTS to secure United States and foreignpatents and any other rights relating to Intellectual Property, including theexecution of a specific assignment of title of any Intellectual Property rightto UTS.

 

**5.****                                      CompetitiveActivities**

 

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

** **

**6.****                                      Useof Other Party’s Name**

 

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

 

**7.****                                   Obligationsof Consultant**

 

(a)                                  Consultant willsupply all tools and instruments required to perform the services under thisAgreement.  Consultant is not requiredto purchase or rent any tools, equipment or services from UTS.

 

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

 

(c)                                  Consultant shallindemnify and hold UTS harmless for any Worker’s Compensation, “over-time”claims, tax liability claims,  or otherclaims brought or liabilities imposed against UTS by Consultant or any thirdparty

 

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

 

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

 

(e)                                  As Consultant is notUTS’ employee, Consultant is responsible for paying all required state andfederal taxes.  In particular:

 

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

 

•            UTS will not makestate or federal unemployment insurance contributions on Consultant’s behalfand Consultant shall not file an unemployment claim against UTS;

 

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

 

•            UTS will not makedisability insurance contributions on behalf of Consultant;

 

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

 

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

 

**8.****                                      Termination**

 

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

 

1.                                       Bankruptcy orinsolvency of either party;

2.                                       Sale of thebusiness of the Consultant

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

 

(b)                                 Should Consultantdefault in the performance of this Agreement or materially breach any of itsprovisions, UTS, at UTS’ option, may terminate this Agreement by giving writtennotification to Consultant.  However, Consultantshall be provided fourteen calendar days to cure such breach before terminationwill take effect.

 

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

 

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

 

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

 

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

 

**9.****                                      Assignment**

 

This Agreement and any compensation payable hereunder to Consultantshall 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 inwriting and shall be deemed given when deposited with the United States PostalService, 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 tothe other.

 

**11.****                               Severability**

 

If any provision or part of a provision of this Agreement is finallydeclared to be invalid by any tribunal of competent jurisdiction, such partshall be deemed automatically adjusted, if possible, to conform to therequirements for validity; but, if such adjustment is not possible, it shall bedeemed deleted from this Agreement as though it had never been includedherein.  In either case, the balance ofany 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 shallnot relieve the parties of any obligations under this Agreement exceptConsultant’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 shallsurvive such expiration or earlier termination of the Period of Service.

 

**13.****                            GeneralProvisions**

 

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

 

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

 

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

 

(d)                                 This Agreement will begoverned by and construed in accordance with the laws of the State ofCalifornia.

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement asof 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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**SCHEDULENo. 1 TO CONSULTING AGREEMENT - CONTROL NO. 294**

 

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

 

**1.**                                      **Exhibit A- Services to be Performed**

 

Consultant shall diligently perform the services set forth in ExhibitA  which is annexed to, and made part ofthis Schedule.

 

**2.****                                      Periodof Service**

 

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

 

**3.****                                      Fee/Expenses**

 

(a)                                  UTS shall pay theConsultant  at a rate of $  125.00 per hour multiplied by the actualnumber 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 solediscretion of UTS.  When performing workin accordance with this Agreement, Consultant will not work more than 8 hoursper day or 40 hours per week.  Invoicesthat exceed 8 hours per day or 40 hours per month will not be approved norpaid.   Consultant shall submit invoicesno more often than monthly.  Paymentshall be due net 30 days from the date of invoice.

 

(b)                                 Any travel or lodging arrangementsrequired by Consultant in connection with Consultant’s assignment with UTS, andto be reimbursed by UTS, must have UTS’s prior approval and must be arranged byUTS’s travel agent, Antelope Travel (408) 325-6153.  Consultant mustprovide Antelope Travel with a credit card number to be used for prepayingtravel costs.  Consultant must thensubmit Antelope Travel’ s expenses to UTS in order to be reimbursed.  No airline, rental car or hotel expensesshall be paid by UTS unless arranged through Antelope Travel.

 

(c)                                  Consultant shall beresponsible for all indirect costs and expenses incident to the performance ofservices for UTS, including, but not limited to, all costs of equipmentprovided by Consultant, all fees, fines, licenses, bonds or taxes required ofor imposed against Consultant and all other of Consultant’s costs of doingbusiness.  UTS shall be responsible forno indirect expenses incurred by Consultant in performing services for UTS.

 

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

 

 

IN WITNESS WHEREOF, the parties have executed this Schedule and amendedthe 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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