**EXHIBIT 10.16**

 
| Date: |   |   | Date: |   |
|-------|--------|--------|-------|--------|

**NON-DISCLOSUREAGREEMENT - Control No. #294**

 

This Agreement is made on this 1st day of  October, 2002 (the “Effective Date”) by and between UltratechStepper, Inc., a Delaware Corporation with offices at 3050 Zanker Road, SanJose, CA 95134 (the “Company”) and Ellery Buchanan with offices at 2907 NavidadCove, Austin, TX 78735 (the “Recipient”), relating to the disclosure by theCompany to Recipient of  confidentialinformation, which information is being disclosed only for the purpose of theRecipient fulfilling the terms of the Consulting Agreement dated October 1,2002 by and between Recipient and Company.

 

As used herein, the term “Confidential Information” shall mean allinformation and data furnished by the Company to Recipient, whether in oral,written, graphic or machine-readable form, including but not limited to,specifications, ideas, know-how, drawings, samples, reports, plans, forecasts,current or historical data, computer programs or documentation and all other technical,marketing, operating, financial or business data. Information which isdisclosed orally shall be considered Confidential Information if it isidentified as confidential or proprietary at the time of disclosure.

 

Recipient understands and agrees that the information and data whichare the subject of this Agreement are confidential and proprietary and of greatvalue to the Company. In consideration of the Company’s undertaking to disclosethe Confidential Information referred to herein, Recipient agrees as follows:

 

1. Recipient agrees that it shall hold the Confidential Information instrict confidence and store it in a safe place, and shall not communicate ordisclose the Confidential Information to any third party without the writtenconsent of the Company. Should the Company authorize the Recipient to disclosethe Confidential Information to a third party, Recipient shall execute asimilar Non-Disclosure Agreement with the third party prior to disclosing suchinformation.  Recipient shall not use suchConfidential Information to benefit itself or others, and agrees to use theConfidential Information only internally and for the purpose(s) describedherein.

 

2. Recipient agrees not to disclose the Confidential Information withinits own organization except to those employees who have a need to know, andRecipient shall obtain from each employee having access to such ConfidentialInformation a written agreement to abide by the terms hereof.

 

3. The parties agree that the Confidential Information disclosed is andwill remain the property of the Company, and that such Confidential Informationshall not be copied or reproduced without the express written permission of theCompany. Recipient may keep all Confidential Information disclosed while theConsulting Agreement for the above referenced Control Number is in force, andshall return the Confidential Information at the end of this period, or uponrequest of the Company, whichever occurs first. At such time, the originals andall copies of such Confidential Information shall be immediately returned tothe Company.

 

4. Recipient’s obligations set forth herein shall not apply withrespect to any portion of the Confidential Information the Recipient candocument:

a. is withinor later falls within the public domain and is generally available withoutbreach of this Agreement; or

b. was knownto Recipient prior to disclosure by the Company or becomes known to Recipientfrom a third party not owing obligations of confidence to the Company; or

c. isindependently developed by Recipient as evidenced by its records without use ofany Confidential Information by employees of Recipient who have had access tosuch information.

 

 

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5. Nothing contained in this Agreement shall be construed as grantingany ownership rights to Recipient or any other intellectual property right orlicense in any Confidential Information, nor constitute any representation,warranty or assurance by the Company with respect to the infringement of anytrademark, patent, copyright, trade secret or any right of third persons.

 

6. Either party may terminate this Agreement by providing thirty dayswritten notice to the other party. However, Recipient’s obligations as set forth herein for ConfidentialInformation disclosed during the course of this Agreement shall remain in fullforce and effect in perpetuity.

 

7. This Agreement may not be assigned by Recipient. Any attemptedassignment by Recipient shall be void and of no effect.

 

8. This Agreement shall be governed by and construed in accordance withthe laws of the state of California. The parties hereto submit to thejurisdiction of the courts in Santa Clara County, CA in any action brought bythe parties hereto concerning this Agreement or the performance thereof.

 

9. If any legal action arises relating to this Agreement, theprevailing party shall be entitled to its court costs, expenses and reasonableattorney’s fees.

 

10. If any term or provision of this Agreement shall be held illegal,unenforceable, or unlawful, the validity of the remaining portions orprovisions shall not be affected thereby.

 

11. This Agreement contains the entire understanding of the partieswith respect to the subject matter herein and supersedes all prior agreementsor understandings. This Agreement shall not be modified except in writingsigned by both parties.

 

IN WITNESS WHEREOF, the parties have caused this Agreement to beeffective as of the Effective Date.

 
| /s/ Ellery Buchanan   |   | Ultratech Stepper, Inc.  |
|-----------------------|--------|--------------------------|
| “Recipient” |   | The “ Company” |
|                  |   |
|                  |   |                     |   |   |
| Authorized Signature  |   | Authorized Signature     |
|                  |   |
| Name:                 |   |                     | Name: | /s/ Heidi Ordwein |   |
|                  |   |                     |   |   |   |
| Title:                |   |                     | Title: | Director, Human Resources |   |
|                       |        |                          |  |  |  |  |  |

 

 

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