Exhibit 10.13


AMENDED AND RESTATED EMPLOYMENT AGREEMENT


THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is made
and entered into effective as of January 2, 2007 (“Effective Date”) by
and between CYMER,  INC., a Nevada corporation (the “Company”) and the Company’s Sr. VP, Chief Financial Officer, NANCY J  BAKER (the “Employee”).  This Agreement shall replace and supersede
that certain Employment Agreement between Employee and the Company entered into
effective as of March 1, 2004 (the
“Original Employment
Agreement”).


RECITALS


A              The Company and
Employee previously entered into the Original Employment Agreement and desire
to amend and restate the Original Employment Agreement in its entirety as set
forth herein, effective as of the Effective Date.


B.            The Company may from
time to time need to address the possibility of an acquisition transaction or
change of control event.  The Board of
Directors of the Company (the “Board”) recognizes that such events can be a distraction
to the Employee and can cause the Employee to consider alternative employment
opportunities.  The Board has determined
that it is in the best interests of the Company and its stockholders to assure
that the Company will have the continued dedication and objectivity of the
Employee, notwithstanding the possibility, threat or occurrence of a Change of
Control (as defined below) of the Company, although no such Change of Control
is now contemplated.


C.            The Board believes
that it is in the best interests of the Company and its stockholders to provide
the Employee with an incentive to continue the Employee’s employment and to
motivate the Employee to maximize the value of the Company upon a Change of
Control for the benefit of its stockholders.


D.            The Board believes
that it is imperative to provide the Employee with certain benefits upon a
Change of Control and, under certain circumstances, upon termination of the
Employee’s employment in connection with a Change of Control, which benefits
are intended to provide the Employee with financial security and provide
sufficient incentive and encouragement to the Employee to remain with the
Company notwithstanding the possibility of a Change of Control.


E.             To accomplish the
foregoing objectives, the Board has directed the Company, upon execution of
this Agreement by the Employee, to agree to the terms provided herein.


F.             Certain capitalized
terms used in this Agreement are defined in Section 7 below.


AGREEMENT


In consideration of the mutual covenants herein contained, and in
consideration of the continuing employment of the Employee by the Company, the
parties agree as follows:



 1
 









1.             Duties and Scope of Employment. 
The Company shall employ the Employee in the position of Sr. VP, Chief Financial Officer as such
position has been defined in terms of responsibilities and compensation as of
the Effective Date of this Agreement; provided,
however, that the Board shall have the right, at any time prior to
the occurrence of a Change of Control, to revise such responsibilities and
compensation as the Board in its discretion may deem necessary or
appropriate.  The Employee shall comply
with and be bound by the Company’s operating policies, procedures and practices
from time to time in effect during the Employee’s employment.  During the term of the Employee’s employment
with the Company, the Employee shall continue to devote the Employee’s full
time, skill and attention to the Employee’s duties and responsibilities, and
shall perform them faithfully, diligently and competently, and the Employee
shall use the Employee’s best efforts to further the business of the Company
and its affiliated entities.


2.             Base
Compensation.  The Company
shall pay the Employee as compensation for the Employee’s services a base
salary, which as the Effective Date of this Agreement is at the annualized rate
of $375,000.00 (and which may be
modified from time to time in accordance with this Agreement, the “Base Compensation”).  The Base Compensation shall be paid
periodically in accordance with normal Company payroll practices.  The Board or the Compensation Committee of
the Board shall review the Base Compensation according to normal Company
practice, but no less frequently than annually, and may in its discretion
modify the Base Compensation but may not decrease the Base Compensation below
the dollar amount specified above, unless Employee consents to such reduction.


3.             Incentive
Compensation.  During the term
of this Agreement, the Employee shall be eligible to receive payments under the
Company’s various incentive and bonus programs as approved from time to time by
the Board or the Compensation Committee of the Board in either’s sole
discretion.  Any payment payable
thereunder shall be payable in accordance with the applicable program and the
Company’s normal practices and policies.


4.             Employee
Benefits.  The Employee
shall be eligible to participate in the employee benefit plans and executive
compensation programs maintained by the Company applicable to other key
executives of the Company, including (without limitation) retirement plans,
savings or profit-sharing plans, stock option, stock purchase or other equity
plans, incentive bonus program, 3-year bonus program or other long-term
incentive programs, bonus programs, life, disability, health, accident and
other insurance programs, paid vacations, and similar plans or programs,
subject in each case to the generally applicable terms and conditions of the
applicable plan or program in question and to the sole determination of the
Board or any committee administering such plan or program.


5.             Employment
Relationship.  The Company
and the Employee acknowledge that the Employee’s employment is and shall
continue to be at-will, as defined under applicable law.  If the Employee’s employment terminates for
any reason, the Employee shall not be entitled to any payments, benefits,
damages, awards or compensation other than as provided by this Agreement, or as
may otherwise be available in accordance with any Company plan or policy
approved by the Board.



 2
 









6.             Termination
Benefits.


(a)           Subject to Sections
8 and 9 below, in the event the Employee’s employment terminates as a result of
an Involuntary Termination other than for Cause upon or within eighteen (18)
months after a Change of Control, then the Employee shall be entitled to
receive severance and other benefits pursuant to this Section 6.   Notwithstanding the foregoing, Employee
shall not be entitled to receive any severance or other benefits pursuant to
this Section 6 if the Board, as constituted prior to the Change in Control,
determined that Employee was demoted by the Company to a position not eligible
for an Employment Agreement prior to the Change of Control from the position
held by Employee as of the Effective Date. 
The foregoing determination may be made at any time by the Board prior to
a Change in Control, shall be made in the Board’s sole discretion, and shall be
binding and conclusive on all persons, including Employee.


(i)            Pay
Continuation.  The Employee
shall be entitled to monthly payments equal to (A) one-twelfth (1/12) of the greater
of the Base Compensation in effect immediately prior to the Change of Control
and the Base Compensation in effect immediately prior to such termination plus
(B) one-thirty-sixth (1/36) of the aggregate amounts paid to the Employee under
the Company’s bonus and incentive programs with respect to the three previous
calendar years.  Such monthly payments
shall be paid according to the normal payroll practice of the Company for 18 months following the date of termination
(the “Termination Period”).


(ii)           Incentive
Payments.


(1)           The Employee
shall be entitled to receive a percentage of each of the Employee’s Target
Incentives for any on-going calendar period in which such termination
occurs.  Such percentage shall equal a
fraction, the numerator of which shall be the number of days in such calendar
period up to and including the date of such termination and the denominator of
which shall be the number of days in such calendar period.  Such amount shall be payable according to the
normal practice of the Company with respect to the payment of such
compensation.  “Target Incentive” shall
mean the maximum amount payable to the Employee at the end of a calendar period
under any Company bonus or incentive program if all of such program’s corporate
and individual performance objectives for that period are met.  “Target Incentive” does not include amounts
payable under the Company’s 3-year bonus program.


(2)           The unvested
portion of any bonus accrued for Employee under the Company’s 3-year bonus
program shall vest and become payable in full in a lump sum as soon as
administratively practicable following the date of termination.


(iii)         Equity
Awards.  The unvested portion of any
stock option(s) or other equity award(s) held by the Employee under the Company’s
equity plans shall vest and become exercisable in full upon the date of such
termination.  The Employee shall be
entitled to exercise all of the Employee’s vested stock options until the later
of (A) the original post-termination exercise period provided in the Employee’s
stock option agreement or (B) one year from the date of such termination (but
not beyond the original contractual life of the option); provided, however, that notwithstanding
the foregoing, with respect to each stock option granted to the Employee before
the Effective Date of this Agreement, such stock option shall not remain
exercisable beyond the later of the fifteenth (15th) day of the third (3rd)
month following the date at which, or December 31 of the calendar year in
which, the stock option would otherwise have expired if the stock option had
not been extended, based on the terms of the stock option at



 3
 









the
original grant date, or such later date that would not cause such option to be
treated as deferred compensation under 409A of the Code (as defined below).


(iv)          Medical
Benefits.  Assuming the
Employee timely and accurately elects to continue his health insurance benefits
under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the
Company shall pay the COBRA premiums for the Employee [and his or her qualified beneficiaries] until
the earliest of (i) the end of the Termination Period, (ii) the expiration of
the Employee’s continuation coverage under COBRA and any applicable state
COBRA-like statute that provides mandated continuation coverage or (iii) the
date the Employee becomes eligible for health insurance benefits of a
subsequent employer.


(b)           In the event
the Employee voluntarily resigns employment with the Company within the 30-day
period beginning one year after a Change of Control, the Employee shall receive
the severance and other benefits set forth in Sections 6(a)(i)-(iv) above.


7.             Definition
of Terms.  The
following terms referred to in this Agreement shall have the following
meanings:


(a)           Cause.  “Cause” shall mean any of the following: (i)
any act of personal dishonesty taken by the Employee in connection with the
Employee’s responsibilities as an employee and intended to result in
substantial personal enrichment of the Employee, (ii) conviction of a felony
that is injurious to the Company, (iii) a willful act by the Employee which
constitutes gross misconduct and which is injurious to the Company, or (iv)
continued violations by the Employee of the Employee’s obligations under
Section 1 of this Agreement after there has been delivered to the Employee a
written demand for performance from the Company which describes the basis for
the Company’s belief that the Employee has not substantially performed the
Employee’s duties.


(b)           Change
of Control.  “Change of
Control” shall mean the occurrence of any of the following events:


(i)            The acquisition
by any “person” (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) (other than the Company or a person that directly or indirectly
is controlled by the Company) of the “beneficial ownership” (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the total voting power represented
by the Company’s then outstanding voting securities; or


(ii)           A change in the
composition of the Board occurring within a two-year period, as a result of
which fewer than a majority of the directors are Incumbent Directors.  “Incumbent Directors” shall mean directors
who either (A) are directors of the Company as of the date hereof, or (B) are
elected to the Board with the affirmative votes of at least a majority of the
Incumbent Directors at the time of such election or (C) are nominated for
election to the Board by a committee of the Board, at least a majority of whose
members are Incumbent Directors at the time of such nomination (but in each
case shall not include an individual not otherwise an Incumbent Director whose
election or nomination is in connection with an actual or threatened proxy
contest relating to the election of directors to the Company); or



 4
 









(iii)         A merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation.


(c)           Disability.  “Disability” shall mean that the Employee has
been unable to substantially perform the Employee’s duties under this Agreement
as the result of the Employee’s incapacity due to physical or mental illness,
and such inability, at least 26 weeks after its commencement, is determined to
be total and permanent by a physician selected by the Company or its insurers;
and acceptable to the Employee or the Employee’s legal representative (such
agreement as to acceptability not to be unreasonably withheld).


(d)           Exchange
Act.  “Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended.


(e)           Involuntary
Termination.  “Involuntary
Termination” shall mean (i) without the Employee’s express written consent, the
significant reduction of the Employee’s duties or responsibilities relative to
the Employee’s duties or responsibilities in effect immediately prior to such
reduction; provided, however,
that a reduction in duties or responsibilities solely by virtue of the Company
being acquired and made part of a larger entity (as, for example, when the
Chief Financial Officer of Company remains as such following a Change of
Control and is not made the Chief Financial Officer of the acquiring
corporation) shall not constitute an “Involuntary Termination”; (ii) without
the Employee’s express written consent, a substantial reduction, without good
business reasons, of the facilities and perquisites (including office space and
location) available to the Employee immediately prior to such reduction; (iii)
without the Employee’s express written consent, a material reduction by the
Company in the Base Compensation or any Target Incentive of the Employee as in
effect immediately prior to such reduction, or the ineligibility of the
Employee to continue to participate in any long-term incentive plan of the
Company; (iv) a material reduction by the Company in the kind or level of
employee benefits to which the Employee is entitled immediately prior to such
reduction with the result that the Employee’s overall benefits package is
significantly reduced; (v) the relocation of the Employee to a facility or a
location more than fifty (50) miles from the Employee’s then present location,
without the Employee’s express written consent; (vi) any purported termination
of the Employee by the Company which is not effected for death or Disability or
for Cause; or (vii) the failure of the Company to obtain the assumption of this
Agreement by any Successors contemplated in Section 10 below.


8.             Limitation
on Payments.


(a)           In the event
that the severance and other benefits provided for in this Agreement or
otherwise payable to the Employee (i) constitute “parachute payments” within
the meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the “Code”) and (ii) but for this Section 8 would be subject to the excise tax
imposed by Section 4999 of the Code, then the Employee’s termination benefits
under Section 6 shall be payable either (i) in full, or (ii) as to such lesser
amount which would result in no portion of such termination benefits being
subject to



 5
 









excise
tax under Section 4999 of the Code, whichever of the foregoing amounts, taking
into account the applicable federal, state and local income taxes and the
excise tax imposed by Section 4999, results in the receipt by the Employee on
an after-tax basis, of the greatest amount of termination benefits under this
Agreement, notwithstanding that all or some portion of such termination
benefits may be taxable under Section 4999 of the Code.


(b)           If a reduction
in the payments and benefits that would otherwise be paid or provided to the
Employee under the terms of this Agreement is necessary to comply with the
provisions of Section 8(a), the Employee shall be entitled to select which
payments or benefits will be reduced and the manner and method of any such
reduction of such payments or  benefits
(including but not limited to the number of options that would vest under
Section 6(a)(iii)) subject to reasonable limitations (including, for example,
express provisions under the Company’s benefit plans) so long as the
requirements of Section 8(a) are met. 
Within thirty (30) days after the amount of any required reduction in
payments and benefits is finally determined in accordance with the provisions
of Section 8(c), the Employee shall notify the Company in writing regarding
which payments or benefits are to be reduced. 
If no notification is given by the Employee, the Company will determine
which amounts to reduce.  If, as a result
of any reduction required by Section 8(a), amounts previously paid to the
Employee exceed the amount to which the Employee is entitled, the Employee will
promptly return the excess amount to the Company.


(c)           Any
determination required under this Section 8 shall be made in writing by a
nationally recognized accounting or consulting firm appointed by the Company,
which firm shall not then be serving as accountant or auditor for or consultant
to the Company or the person or entity that effected the Change in Control and
whose determinations shall be conclusive and binding upon the Employee and the
Company for all purposes.  For purposes
of making the calculations required by this Section 8, such firm may make
reasonable assumptions and approximations concerning applicable taxes and may
rely on reasonable, good faith interpretations concerning the application of
Sections 280G and 4999 of the Code.  The
Company and the Employee shall furnish to such firm such information and
documents as such firm may reasonably request in order to make a determination
under this Section 8.  The Company shall
bear all costs such firm may reasonably incur in connection with any
calculations contemplated by this Section 8.


9.             Application
of Code Section 409A.  If
the Company determines that any termination benefit provided in Section 6 fails
to satisfy the distribution requirement of Section 409A(a)(2)(A) of the Code as
a result of Section 409A(a)(2)(B)(i) of the Code, the payment of such benefit
shall be accelerated to the minimum extent necessary so that the benefit is not
subject to the provisions of Section 409A(a)(1) of the Code.  (It is the intention of the preceding
sentence to apply the short-term deferral provisions of Section 409A of the
Code, and the regulations and other guidance thereunder, to the termination
benefits, and the payment schedule as revised after the application of the
preceding sentence shall be referred to as the “Revised Payment Schedule.”)  If there is no Revised Payment Schedule that
would avoid the application of Section 409A(a)(1) of the Code, the payment of
such benefits shall not be paid pursuant to a Revised Payment Schedule and
instead shall be delayed to the minimum extent necessary so that such benefits
are not subject to the provisions of Section 409A(a)(l) of the Code (e.g., payments to which Employee would
otherwise be entitled during the first six months following separation from
service shall accumulate and be paid at the expiration of such period, 



 6
 









unless
a permitted distribution event occurs during such period).  The Board or the Compensation Committee of
the Board may attach conditions to or adjust the amounts paid pursuant to this
Section 9 to preserve, as closely as possible, the economic consequences that
would have applied in the absence of this Section 9; provided, however, that no such condition or adjustment
shall result in the payments being subject to Section 409A(a)(1) of the Code.


10.          Successors.


(a)           Company’s
Successors.  Any
successor to the Company (whether direct or indirect and whether by purchase,
lease, merger, consolidation, liquidation or otherwise) to all or substantially
all of the Company’s business and assets shall assume the obligations under
this Agreement and agree expressly to perform the obligations under this
Agreement in the same manner and to the same extent as the Company would be
required to perform such obligations in the absence of a succession.  For all purposes under this Agreement, the
term “Company” shall include any Successor to the Company’s business and assets
which executes and delivers the assumption agreement described in this Section
10(a) or which becomes bound by the terms of this Agreement by operation of
law.


(b)           Employee’s
Successors.  The terms of
this Agreement and all rights of the Employee hereunder shall inure to the
benefit of, and be enforceable by, the Employee’s personal or legal
representatives, executors, administrators, successors, heirs, devisees and
legatees.


11.          Notice.  Notices and all other communications
contemplated by this Agreement shall be in writing and shall be deemed to have
been duly given when personally delivered or when mailed by U.S. registered or
certified mail, return receipt requested and postage prepaid. In the case of
the Employee, mailed notices shall be addressed to him at the home address
which he most recently communicated to the Company in writing.  In the case of the Company, mailed notices
shall be addressed to its corporate headquarters, and all notices shall be
directed to the attention of its Secretary.


12.          Miscellaneous
Provisions.


(a)           Waiver.  No provision of this Agreement shall be
modified, waived or discharged unless the modification, waiver or discharge is
agreed to in writing and signed by the Employee and by an authorized officer of
the Company (other than the Employee). 
No waiver by either party of any breach of, or of compliance with, any
condition or provision of this Agreement by the other party shall be considered
a waiver of any other condition or provision or of the same condition or
provision at another time.


(b)           Whole
Agreement.  No
agreements, representations or understandings (whether oral or written and
whether express or implied) which are not expressly set forth in this Agreement
have been made or entered into by either party with respect to the subject
matter hereof.  This Agreement represents
the Company’s and the Employee’s entire understanding with respect to the
subject matter contained herein and supersedes all previous understandings,
written or oral between the Company and the Employee concerning the subject
matters of this Agreement, including but not limited to the Original Employment
Agreement.



 7
 









(c)           Choice
of Law.  The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of California.


(d)           Severability.  The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.


(e)           Arbitration.  Any dispute or controversy arising out of,
relating to or in connection with this Agreement shall be settled exclusively
by binding arbitration in San Diego, California, in accordance with the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association then in effect. 
Judgment may be entered on the arbitrator’s award in any court having
jurisdiction.  The arbitrator shall: (i)
have the authority to compel adequate discovery for the resolution of the
dispute and to award such relief as would otherwise be permitted by law; and
(ii) issue a written arbitration decision including the arbitrator’s essential
findings and conclusions and a statement of the award.  Both the Employee and the Company shall be
entitled to all rights and remedies they would have in a court of law.  The Company shall pay all fees in excess of
those which will be required if the dispute were decided in a court of law.


(f)            No
Assignment of Benefits.  The
rights of any person to payments or benefits under this Agreement shall not be
made subject to option or assignment, either by voluntary or involuntary
assignment or by operation of law, including (without limitation) bankruptcy,
garnishment, attachment or other creditor’s process, and any action in
violation of this Section 12(f) shall be void.


(g)           Assignment
by Company.  The Company
may assign its rights under this Agreement to an affiliate, and an affiliate
may assign its rights under this Agreement to another affiliate of the Company
or to the Company; provided, however,
that no assignment shall be made if the net worth of the assignee is less than
the net worth of the Company at the time of assignment.  In the case of any such assignment, the term “Company”
when used in a section of this Agreement shall mean the corporation that
actually employs the Employee.


(h)           Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.


[REMAINDER OF THIS PAGE
INTENTIONALLY LEFT BLANK]


 



 8
















 


IN WITNESS WHEREOF, each of
the parties has executed this Agreement, in the case of the Company by its duly
authorized officer, as of the day and year first above written.


 


	
  COMPANY:

  	
  CYMER, INC

  	
   

  
	
  

  	
  By:

  	
  /s/ Robert P. Akins

  	
   

  
	
   

  	
  Title:

  	
  CEO

  	
   

  
	
   

  	
  Date:

  	
  2/23/07

  	
   

  
	
  EMPLOYEE:

  	
  /s/ Nancy J. Baker

  	
   

  
	
   

  	
  NANCY J BAKER

  	
   

  
	
   

  	
  Date:

  	
  2/23/07