**Exhibit 10.1**

 

**CYMER, INC.**

 

**INDEMNIFICATION AGREEMENT**

 

**This IndemnificationAgreement**(this ***“Agreement”***) is made effective as of                                        by and between Cymer, Inc., a Nevada corporation (the ***“Company”***), and                                        (***“Indemnitee”***).

 

**WHEREAS**, the Companydesires to attract and retain the services of highly qualified individuals,such as Indemnitee, to serve the Company and its related entities;

 

**WHEREAS**, the Companyrecognizes that competent and experienced individuals are reluctant to serve asdirectors or officers of corporations unless they are protected bycomprehensive liability insurance or indemnification, or both, due to increasedexposure to litigation costs and risks resulting from their service to suchcorporations, and due to the fact that the exposure frequently bears noreasonable relationship to the compensation of such directors and officers;

 

**WHEREAS**, the Companyand Indemnitee recognize the substantial increase in corporate litigation ingeneral, subjecting directors, officers, employees, agents and fiduciaries toexpensive litigation risks;

 

**WHEREAS**, thestatutes and judicial decisions regarding the duties of directors and officersare often difficult to apply, ambiguous or conflicting, and therefore fail toprovide such directors and officers with adequate or reliable advance knowledgeor guidance with respect to the legal risks and potential liabilities to whichthey may become personally exposed or information regarding the proper courseof action to take in performing their duties in good faith for the Company;

 

**WHEREAS**, the NevadaRevised Statutes (the *“**NRS**”*), empowersthe Company to indemnify its officers, directors, employees and agents andindemnify persons who serve or served, at the request of the Company, as thedirectors, officers, employees or agents of another corporation, partnership,joint venture, trust or other enterprise and the NRS further provides that theCompany’s articles of incorporation (the ***“Articles”***) or bylaws (the *“**Bylaws**”*) or an agreement may provide thatthe expenses of officers and directors incurred in defending a civil orcriminal action, suit or proceeding must be paid by the Company as suchexpenses are incurred and in advance;

 

**WHEREAS**, the NRS expresslyprovides that the indemnification authorized by the NRS and the advancement ofexpenses authorized under the NRS do not exclude any other rights to whichthose seeking indemnification or advancement pursuant thereto may be entitledunder the Articles or Bylaws or pursuant to any agreement, vote of stockholdersor disinterested directors or otherwise;

 

**WHEREAS**, the Articles and Bylaws allow the Company toindemnify its directors, officers, agents and employees to the maximum extentpermitted under Nevada law; and

 

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**WHEREAS**, in view ofthe considerations set forth above, the Company desires that Indemnitee shallbe indemnified by the Company as set forth herein.

 

**NOW, THEREFORE**, inconsideration of the premises and covenants in this Agreement, and intending tobe legally bound hereby, the parties hereto agree as follows:

 

**1.             CertainDefinitions.**

 

**(a)           *“Change in Control”***shall mean, and shall be deemed to haveoccurred if, on or after the date of this Agreement, (i) any “person” (as suchterm is used in Sections 13(d) and 14(d) of the Securities Exchange Act of1934, as amended (the ***“Act”***)),other than a trustee or other fiduciary holding securities under an employeebenefit plan of the Company acting in such capacity or a corporation owneddirectly or indirectly by the stockholders of the Company in substantially thesame proportions as their ownership of stock of the Company, becomes the“beneficial owner” (as defined in Rule 13d-3 under the Act), directly orindirectly, of securities of the Company representing more than 20% of thetotal voting power represented by the Company’s then outstanding VotingSecurities; *provided, however,*that anychange in ownership of the Company’s securities by any person resulting solelyfrom a reduction in the aggregate number of outstanding shares of capital stockof the Company, and any decrease thereafter in such person’s ownership ofsecurities, shall be disregarded until such person increases in any manner,directly or indirectly, such person’s beneficial ownership of any securities of the Company;(ii) during any period of two consecutive years, individuals who at thebeginning of such period constitute the Board of Directors of the Company (the ***“Board”***) and any newdirector whose election by the Board or nomination for election by theCompany’s stockholders was approved by a vote of at least two-thirds of thedirectors then still in office who either were directors at the beginning ofthe period or whose election or nomination for election was previously soapproved, cease for any reason to constitute a majority of the Board, or (iii)the stockholders of the Company approve a merger or consolidation of theCompany with any other corporation other than a merger or consolidation whichwould result in the Voting Securities of the Company outstanding immediatelyprior thereto continuing to represent (either by remaining outstanding or bybeing converted into Voting Securities of the surviving entity) at least 80% ofthe total voting power represented by the Voting Securities of the Company orsuch surviving entity outstanding immediately after such merger orconsolidation, or the stockholders of the Company approve a plan of completeliquidation of the Company or an agreement for the sale or disposition by theCompany of (in one transaction or a series of related transactions) all orsubstantially all of the Company’s assets.

 

**(b)           *“Claim”***shall mean any threatened, pending orcompleted action, suit, proceeding or alternative dispute resolution mechanism,or any hearing, inquiry or investigation that Indemnitee in good faith believesmight lead to the institution of any such action, suit, proceeding oralternative dispute resolution mechanism, whether civil, criminal, administrative,investigative or other.

 

**(c)          **Referencesto the ***“Company”***shall include, in addition to Cymer, Inc., any constituent corporation(including any constituent of a constituent) absorbed in a consolidation ormerger to which Cymer, Inc. (or any of its wholly owned subsidiaries) has beenor becomes a party which, if its separate existence had continued, would havehad power and

 

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authority toindemnify its directors, officers, employees, agents or fiduciaries, so that ifIndemnitee is or was a director, officer, employee, agent or fiduciary of suchconstituent corporation, or is or was serving at the request of suchconstituent corporation as a director, officer, employee, agent or fiduciary ofanother corporation, partnership, joint venture, employee benefit plan, trustor other enterprise, Indemnitee shall stand in the same position under theprovisions of this Agreement with respect to the resulting or survivingcorporation as Indemnitee would have with respect to such constituentcorporation if its separate existence had continued.

 

**(d)           *“Expenses”*** shall bebroadly construed and shall mean any and all direct and indirect costs andexpenses (including, without limitation, attorneys’ fees and all other costs,expenses and obligations incurred in connection with investigating, defending,being a witness in or participating in (including on appeal), or preparing todefend, to be a witness in or to participate in, any action, suit, proceeding,alternative dispute resolution mechanism, hearing, inquiry or investigation),judgments, fines, penalties and amounts paid in settlement (if such settlementis approved in advance by the Company, which approval shall not be unreasonablywithheld) of any Claim regarding any Indemnifiable Event and any federal,state, local or foreign taxes imposed on the Indemnitee as a result of theactual or deemed receipt of any payments under this Agreement.

 

**(e)           *“Expense Advance”***shall mean an advance payment ofExpenses to Indemnitee pursuant to Section 3(a) hereof.

 

**(f)            *“Indemnifiable Event”***shall mean any event or occurrencerelated to the fact that Indemnitee is or was a director, officer, employee,agent or fiduciary of the Company, or any subsidiary of the Company, or anypredecessor of the Company or subsidiary, or is or was serving at the requestof the Company or a predecessor of the Company as a director, officer,employee, agent or fiduciary of another corporation, partnership, jointventure, trust or other enterprise, or by reason of any action or inaction onthe part of Indemnitee while serving in such capacity.

 

**(g)           *“Independent Legal Counsel”***shall meanan attorney or firm of attorneys, selected in accordance with the provisions ofSection 2(c) hereof, who shall not have otherwise performed services for theCompany or Indemnitee within the last three years (other than with respect tomatters concerning the rights of Indemnitee under this Agreement, or of otherindemnitees under similar indemnity agreements).

 

**(h)          **Referencesto ***“other enterprise”***shall include employee benefit plans; references to ***“fines”*** shall includeany excise taxes assessed on Indemnitee with respect to an employee benefitplan; and references to ***“servingat the request of the Company”*** shall include any service as adirector, officer, employee, agent or fiduciary of the Company which imposesduties on, or involves services by, such director, officer, employee, agent orfiduciary with respect to an employee benefit plan, its participants or itsbeneficiaries.

 

**(i)            *“Reviewing Party”***shall mean (i) the Board bymajority vote of a quorum consisting of directors who were not parties to theparticular Claim for which Indemnitee is seeking indemnification, or(ii) if the Board by a majority vote of a quorum consisting of directorswho were not parties to the particular Claim for which Indemnitee is seeking

 

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indemnificationso orders, Independent Legal Counsel, or (iii) the Company’s stockholders by amajority vote at a meeting duly called by the Board by a majority vote of aquorum consisting of directors who were not parties to the particular Claim forwhich Indemnitee is seeking indemnification at which meeting of stockholders aquorum is present with the shares owned by Indemnitee not being entitled tovote thereon. If a quorum of the Board consisting of directors who were notparties to the particular Claim for which Indemnitee is seeking indemnificationcannot be found, then ***“ReviewingParty”*** shall mean Independent Legal Counsel. If there has been aChange in Control (other than a Change in Control which has been approved by amajority of the Board who were directors immediately prior to such Change inControl), the designation of the Reviewing Party shall be subject toSection 2(d) hereof.

 

**(j)            *“Voting Securities”***shall mean any securities of the Companythat have the right to vote generally in the election of directors.

 

**2.             Indemnification.**

 

**(a)           NonexclusiveIndemnity. **TheCompany shall indemnify Indemnitee to the fullest extent permitted by Nevadalaw and the Articles and Bylaws in effect on the date hereof, and as Nevadalaw, the Articles and Bylaws may from time to time be amended (but, in the caseof any such amendment, only to the extent such amendment permits the Company toprovide broader indemnification rights than Nevada law and the Articles andBylaws permitted the Company to provide before such amendment). Suchindemnification shall include, without limitation, the following:

 

**(i)            Indemnity Involving Third Party Claims. **The Company shall indemnify Indemniteeif Indemnitee is a party to or is threatened to be made a party to or isotherwise involved in any Claim (other than a Claim by or in the name of theCompany to procure a judgment in its favor) by reason of an IndemnifiableEvent, against all Expenses incurred by Indemnitee in connection with theinvestigation, defense, settlement or appeal of such Claim, if he or she either(i) is not liable pursuant to NRS 78.138 or (ii) acted in good faith and ina manner he or she reasonably believed to be in or not opposed to the bestinterest of the Company and, in the case of a criminal Claim, had no reasonablecause to believe that his or her conduct was unlawful.****The termination of any such Claim byjudgment, order of court, settlement, conviction or upon a plea of nolocontendere, or its equivalent, does not, of itself, create a presumption thatIndemnitee is liable pursuant to NRS 78.138 or did not act in good faith or ina manner which he or she reasonably believed to be in or not opposed to thebest interest of the Company or, with respect to any criminal Claim, that suchperson had reasonable cause to believe that his or her conduct was unlawful.Such payment of Expenses shall be made by the Company as soon as practicablebut in any event no later than 30 business days after written demand byIndemnitee therefor is presented to the Company (or, if demand is made pursuantto Section 3(a) hereof, then no later than the date set forth in such section).

 

**(ii)           Indemnity in Derivative Actions.**  The Company shall indemnify Indemnitee ifIndemnitee is a party to or is threatened to be made a party to or is otherwiseinvolved in any Claim by or in the name of the Company to procure a

 

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judgment in its favor by reason of an Indemnifiable Event, against allExpenses, but only if Indemnitee is not liable pursuant to NRS 78.138 and actedin good faith and in a manner he or she reasonably believed to be in or notopposed to the best interest of the Company, except that no indemnificationunder this Section 2(a)(ii) shall be made for any claim, issue or matter towhich the Indemnitee has been adjudged by a court of competent jurisdiction,after the exhaustion of all appeals therefrom, to be liable to the Company orfor amounts paid in settlement to the Company, unless and only to the extentthat any court in which such Claim is brought or other court of competentjurisdiction determines upon application that, in view of all the circumstancesof the case, Indemnitee is fairly and reasonably entitled to indemnity for suchamounts as the court shall deem proper. Such payment of Expenses shall be madeby the Company as soon as practicable but in any event no later than 30 businessdays after written demand by Indemnitee therefor is presented to the Company(or, if demand is made pursuant to Section 3(a) hereof, then no later than thedate set forth in such section).

 

**(b)           Reviewing Party; Undertaking to Repay.**  Notwithstanding the foregoing, (i) theobligations of the Company under Section 2(a) hereof shall be subject to thecondition that, unless ordered by a court or advanced pursuant to Section 3(a)hereof, the Reviewing Party shall have determined that indemnification is properunder the circumstances, and (ii) the obligation of the Company to make anExpense Advance pursuant to Section 3(a) hereof shall be conditioned uponreceipt by the Company of an undertaking by or on behalf of Indemnitee to repaythe amount advanced if it is ultimately determined by a court of competentjurisdiction (in a final judicial determination as to which all rights ofappeal have been exhausted or lapsed) that Indemnitee is not entitled to beindemnified by the Company. Indemnitee’s obligation to reimburse the Companyfor any Expense Advance shall be unsecured and no interest shall be chargedthereon. If either (1) there has not been a Change in Control or(2) there has been a Change in Control which was approved by a majority ofthe Board who were directors immediately prior to such Change in Control, theReviewing Party shall be chosen as set forth in Section 1(i) hereof. If therehas been no determination by the Reviewing Party or if the Reviewing Partydetermines that Indemnitee substantively would not be permitted to beindemnified in whole or in part under applicable law, Indemnitee shall have theright to commence litigation seeking an initial determination by the court orchallenging any such determination by the Reviewing Party or any aspect thereof,including the legal or factual bases therefor, and the Company hereby consentsto service of process and to appear in any such proceeding. Absent suchlitigation, any determination by the Reviewing Party shall be conclusive andbinding on the Company and Indemnitee.

 

**(c)           Independent Legal Counsel.**  With respect to all matters arisingconcerning the rights of Indemnitee to payments of Expenses and ExpenseAdvances under this Agreement or any other agreement or under the Articles orBylaws (as now or hereafter in effect), Independent Legal Counsel, if calledfor under this Agreement, shall be selected by Indemnitee and approved by theCompany (which approval shall not be unreasonably withheld). Such counsel,among other things, shall render its written opinion to the Company andIndemnitee as to whether and to what extent Indemnitee would be permitted to beindemnified under applicable law and the Company agrees to abide by suchopinion. The Company agrees to pay the reasonable fees of the Independent LegalCounsel referred to above and to indemnify fully such counsel against any andall expenses (including attorneys’ fees), claims, liabilities and

 

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damagesarising out of or relating to this Agreement or its engagement pursuant hereto.Notwithstanding any other provision of this Agreement, the Company shall not berequired to pay Expenses of more than one Independent Legal Counsel inconnection with all matters concerning a single Indemnitee, and such IndependentLegal Counsel shall be the Independent Legal Counsel for any or all otherIndemnitees unless (i) the Company otherwise determines or (ii) any Indemniteeshall provide a written statement setting forth in detail a reasonableobjection to such Independent Legal Counsel representing other Indemnitees.

 

**(d)           Change in Control.**  The Company agrees that if there is a Changein Control (other than a Change in Control which was approved by a majority ofthe Board who were directors immediately prior to such Change in Control),then, if desired by Indemnitee, Indemnitee shall have the right to chooseIndependent Legal Counsel to be the Reviewing Party as provided for inSection 2(c) hereof.

 

**(e)           Mandatory Payment of Expenses.**  Notwithstanding any other provision of thisAgreement other than Section 9 hereof, to the extent that Indemnitee has beensuccessful on the merits or otherwise, including, without limitation, thedismissal of an action without prejudice, in defense of any Claim regarding anyIndemnifiable Event, Indemnitee shall be indemnified against all Expensesincurred by Indemnitee in connection therewith.

 

**3.****                                      Expenses;Indemnification Procedure.**

 

**(a)           Advancement of Expenses.**  The Company shall advance all Expensesincurred by Indemnitee. The advances to be made hereunder shall be paid by theCompany to Indemnitee as soon as practicable but in any event no later than 20business days after written demand by Indemnitee therefor to the Company.

 

**(b)           Notice; Cooperation by Indemnitee.**  Indemnitee shall, as a condition precedentto Indemnitee’s right to be indemnified under this Agreement, give the Companynotice in writing as soon as practicable of any Claim made against Indemniteefor which indemnification will or could be sought under this Agreement. Noticeto the Company shall be directed to the Chief Executive Officer of the Companyat the address or facsimile number shown on the signature page of thisAgreement (or such other address or facsimile number as the Company shalldesignate in writing to Indemnitee). In addition, Indemnitee shall give theCompany such information and cooperation as the Company may reasonably requireand as shall be within Indemnitee’s power.

 

**(c)           No Presumptions; Burden of Proof.**  For purposes of this Agreement, the terminationof any Claim by judgment, order, settlement (whether with or without courtapproval) or conviction, or upon a plea of *nolocontendere*, or its equivalent, shall not, of itself, create apresumption that Indemnitee did not meet any particular standard of conduct orhave any particular belief or that a court has determined that indemnificationis not permitted by applicable law. In addition, neither the failure of theReviewing Party to have made a determination as to whether Indemnitee has metany particular standard of conduct or had any particular belief, nor an actualdetermination by the Reviewing Party that Indemnitee has not met such standardof conduct or did not have such belief, prior to the commencement of legalproceedings by Indemnitee to secure a judicial determination that Indemniteeshould be indemnified under

 

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applicablelaw, shall be a defense to Indemnitee’s claim or create a presumption thatIndemnitee has not met any particular standard of conduct or did not have anyparticular belief. In connection with any determination by the Reviewing Partyor otherwise as to whether Indemnitee is entitled to be indemnified hereunder,the burden of proof shall be on the Company to establish that Indemnitee is notso entitled.

 

**(d)           Notice to Insurers.**  If, at the time of the receipt by theCompany of a notice of a Claim pursuant to Section 3(b) hereof, the Company hasliability insurance in effect which may cover such Claim, the Company shallgive prompt notice of the commencement of such Claim to the insurers inaccordance with the procedures set forth in the respective policies. TheCompany shall thereafter take all necessary or desirable action to cause suchinsurers to pay, on behalf of the Indemnitee, all amounts payable as a resultof such Claim in accordance with the terms of such policies.

 

**(e)           Selection of Counsel.**  In the event the Company shall be obligatedhereunder to pay the Expenses of any Claim, the Company, if appropriate, shallbe entitled to assume the defense of such Claim with counsel approved byIndemnitee (such approval not to be unreasonably withheld or delayed) upon thedelivery to Indemnitee of written notice of the Company’s election so to do.After (i) delivery of such notice, (ii) approval of such counsel by Indemniteeand (iii) the retention of such counsel by the Company, the Company willthereafter not be liable to Indemnitee under this Agreement for any fees ofcounsel subsequently incurred by Indemnitee with respect to the same Claim; *provided,*that (1) Indemnitee shall havethe right to employ Indemnitee’s separate counsel in any such Claim atIndemnitee’s expense and (2) if (A) the employment of separate counsel byIndemnitee has been previously authorized by the Company, (B) Indemnitee shallhave reasonably concluded that there may be a conflict of interest between theCompany and Indemnitee in the conduct of any such defense, or (C) the Companyshall not continue to retain such counsel to defend such Claim, then the feesand expenses of Indemnitee’s separate counsel shall be at the expense of theCompany.

 

**4.             AdditionalCovenants.**

 

**(a)           Scope.** The Company hereby agrees to indemnify Indemnitee to the fullest extentpermitted by Nevada law, notwithstanding that such indemnification is notspecifically authorized by the other provisions of this Agreement, by theArticles or Bylaws (as now or hereafter in effect) or by the NRS. In the eventof any change after the date of this Agreement in any applicable law, statuteor rule which expands the right of a Nevada corporation to indemnify a memberof its board of directors or an officer, employee, agent or fiduciary, it isthe intent of the parties hereto that Indemnitee shall enjoy by this Agreementthe greater benefits afforded by such change. In the event of any change in anyapplicable law, statute or rule which narrows the right of a Nevada corporationto indemnify a member of its board of directors or an officer, employee, agentor fiduciary, such change, to the extent not otherwise required by such law,statute or rule to be applied to this Agreement, shall have no effect on thisAgreement or the parties’ rights and obligations hereunder except as set forthin Section 9(a) hereof.

 

**(b)           Nonexclusivity.**  The indemnification provided by this Agreement shall be inaddition to any rights to which Indemnitee may be entitled under the Articlesor Bylaws (as now or hereafter in effect), any other agreement, any vote ofstockholders or disinterested

 

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directors, theNRS or otherwise. The indemnification provided under this Agreement shallcontinue as to Indemnitee for any action taken or not taken while serving in anindemnified capacity even though Indemnitee may have ceased to serve in suchcapacity.

 

**5.             No Duplication of Payments.**  The Company shall not be liable under thisAgreement to make any payment in connection with any Claim made againstIndemnitee to the extent Indemnitee has otherwise actually received payment(under any insurance policy, provision of the Articles, Bylaws (as now orhereafter in effect) or otherwise) of the amounts otherwise indemnifiablehereunder.

 

**6.             Partial Indemnification.**  If Indemnitee is entitled under anyprovision of this Agreement to indemnification by the Company for some or aportion of Expenses incurred in connection with any Claim, but not, however,for the total amount thereof, the Company shall nevertheless indemnifyIndemnitee for that portion of such Expenses to which Indemnitee is entitled.

 

**7.             Mutual Acknowledgment.**  Both the Company and Indemnitee acknowledgethat in certain instances, federal law or applicable public policy may prohibitthe Company from indemnifying its directors, officers, employees, agents orfiduciaries under this Agreement or otherwise. Indemnitee understands andacknowledges that the Company has undertaken or may be required in the futureto undertake with the Securities and Exchange Commission to submit the questionof indemnification to a court in certain circumstances for a determination ofthe Company’s right under public policy to indemnify Indemnitee.

 

**8.             Liability Insurance.**  To the extent the Company maintainsliability insurance applicable to directors, officers, employees, agents orfiduciaries, Indemnitee shall be covered by such policies in such a manner asto provide Indemnitee the same rights and benefits as are provided to the mostfavorably insured of the Company’s directors, if Indemnitee is a director ofthe Company; or of the Company’s officers, if Indemnitee is not a director ofthe Company but is an officer of the Company; or of the Company’s keyemployees, agents or fiduciaries, if Indemnitee is not an officer or directorbut is a key employee, agent or fiduciary of the Company.

 

**9.             Exceptions.**  Notwithstanding any other provision of this Agreement, theCompany shall not be obligated pursuant to the terms of this Agreement:

 

**(a)           Excluded Action or Omissions.**  To indemnify Indemnitee for acts, omissionsor transactions from which Indemnitee may not be relieved of liability underapplicable law.

 

**(b)           Claims Initiated by Indemnitee.**  To indemnify or advance expenses toIndemnitee with respect to Claims initiated or brought voluntarily byIndemnitee and not by way of defense, except (i) with respect to actions orproceedings brought to establish or enforce a right to indemnification underthis Agreement or any other agreement or insurance policy or under the Articlesor Bylaws (as now or hereafter in effect) relating to Claims for IndemnifiableEvents, (ii) in specific cases if the Board has approved the initiation orbringing of such Claim, or (iii) as otherwise required under the NRS,regardless of whether Indemnitee ultimately is

 

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determined tobe entitled to such indemnification, advance expense payment or insurancerecovery, as the case may be.

 

**(c)           Lack of Good Faith.**  To indemnify Indemnitee for any expensesincurred by the Indemnitee with respect to any proceeding instituted byIndemnitee to enforce or interpret this Agreement, if a court of competentjurisdiction determines that each of the material assertions made by theIndemnitee in such proceeding was not made in good faith or was frivolous.

 

**(d)           Violation of Law; Claims Under Section 16(b), Etc.**  To indemnify Indemnitee on account of anyClaim with respect to (i) remuneration paid to Indemnitee if it isdetermined by final judgment or other final adjudication that such remunerationwas in violation of law, (ii) which final judgment is rendered againstIndemnitee for an accounting of profits made from the purchase and sale byIndemnitee of securities of the Company pursuant to the provisions of Section16(b) of the Act, or similar provisions of any federal, state or local statute,or (iii) which it is determined by final judgment or other finaladjudication that Indemnitee defrauded or stole from the Company or convertedto his or her own personal use and benefit business or properties of theCompany or was otherwise knowingly dishonest.

 

**(e)           Settlement Without Consent.** To indemnify the Indemnitee for any amountspaid in settlement of a Claim effected without the Company’s written consent.

 

**10.          Period of Limitations.**  No legal action shall be brought and nocause of action shall be asserted by or in the right of the Company againstIndemnitee, Indemnitee’s estate, spouse, heirs, executors or personal or legalrepresentatives after the expiration of two years from the date of accrual ofsuch cause of action, and any claim or cause of action of the Company shall beextinguished and deemed released unless asserted by the timely filing of alegal action within such two-year period; *provided*,*however*, that if any shorterperiod of limitations is otherwise applicable to any such cause of action, suchshorter period shall govern.

 

**11.          Counterparts**.  This Agreement may be executed in one or more counterparts,including without limitation facsimile counterparts, each of which shallconstitute an original and all of which taken together shall constitute one andthe same instrument.

 

**12.          Binding Effect; Successors and Assigns**.  This Agreement shall be binding upon andinure to the benefit of and be enforceable by the parties hereto and theirrespective successors, assigns (including any direct or indirect successor bypurchase, merger, consolidation or otherwise to all or substantially all of thebusiness or assets of the Company), spouses, heirs and personal and legalrepresentatives. The Company shall require and cause any successor (whetherdirect or indirect, and whether by purchase, merger, consolidation orotherwise) to all, substantially all, or a substantial part, of the business orassets of the Company, by written agreement in form and substance satisfactoryto Indemnitee, to expressly assume and agree to perform this Agreement in thesame manner and to the same extent that the Company would be required toperform if no such succession had taken place. This Agreement shall continue ineffect regardless of whether Indemnitee continues to serve as a director,officer, employee, agent or fiduciary (as applicable) of the Company or of anyother enterprise at the Company’s request.

 

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**13.          Attorneys’ Fees**.  In the event that any action is institutedby Indemnitee under this Agreement or under any liability insurance policiesmaintained by the Company to enforce or interpret any of the terms hereof orthereof, Indemnitee shall be entitled to be paid all Expenses incurred byIndemnitee with respect to such action, regardless of whether Indemnitee isultimately successful in such action, and shall be entitled to the advancementof Expenses with respect to such action, unless as a part of such action acourt of competent jurisdiction over such action determines that each of thematerial assertions made by Indemnitee as a basis for such action were made inbad faith or were frivolous. In the event of an action instituted by or in thename of the Company under this Agreement to enforce or interpret any of theterms of this Agreement, Indemnitee shall be entitled to be paid all Expensesincurred by Indemnitee in defense of such action (including costs and expensesincurred with respect to Indemnitee’s counterclaims and cross-claims made insuch action), and shall be entitled to the advancement of Expenses with respectto such action, unless as a part of such action a court having jurisdictionover such action determines that each of Indemnitee’s material defenses to suchaction were made in bad faith or were frivolous.

 

**14.          Notice.** All notices, requests, demands and other communications under thisAgreement shall be in writing and shall be deemed duly given (i) if deliveredby hand and signed for by the party addressed, on the date of such delivery,(ii) if sent by facsimile with written evidence of successful transmission, onthe date of such transmission, or (iii) if mailed by domestic certified orregistered mail with postage prepaid, on the third business day after the datepostmarked. Addresses for notice to either party are as shown on the signaturepage of this Agreement, or as subsequently modified by written notice.

 

**15.          Consent to Jurisdiction.**The Company andIndemnitee each hereby irrevocably consent to the jurisdiction of the courts ofthe State of Nevada for all purposes in connection with any action orproceeding which arises out of or relates to this Agreement and agree that anyaction instituted under this Agreement shall be commenced, prosecuted andcontinued only in the state courts of the State of Nevada.

 

**16.          Severability.**  The provisions of this Agreement shall be severable in the eventthat any provision or provisions hereof (including any provision within asingle section, paragraph or sentence) are held by a court of competent jurisdictionto be invalid, void or otherwise unenforceable, and the remaining provisionsshall remain enforceable to the fullest extent permitted by law. Furthermore,to the fullest extent possible, the provisions of this Agreement (including,without limitation, each portion of this Agreement containing any provisionheld to be invalid, void or otherwise unenforceable, that is not itselfinvalid, void or unenforceable) shall be construed so as to give effect to theintent manifested by the provision held invalid, illegal or unenforceable.

 

**17.          Choice of Law.**  This Agreement shall be governed by, and its provisions construedand enforced in accordance with, the laws of the State of Nevada, as applied tocontracts between Nevada residents entered into and to be performed entirelywithin the State of Nevada, without regard to conflict of laws provisions whichwould otherwise require application of the substantive law of anotherjurisdiction.

 

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**18.          Amendment and Termination.**  No amendment, modification, supplement,termination or cancellation of this Agreement shall be effective unless it isin writing and signed by each party hereto. No waiver of any of the provisionsof this Agreement shall be deemed to be or shall constitute a waiver of anyother provisions hereof (whether or not similar), nor shall such waiverconstitute a continuing waiver.

 

**19.          Headings.**  The headings of the Sections and paragraphs of this Agreement areinserted for convenience only and shall not be deemed to constitute part ofthis Agreement or to affect the construction hereof.

 

**20.          Integration and Entire Agreement.**  This Agreement sets forth the entireunderstanding between the parties hereto and supersedes and merges all previouswritten and oral negotiations, commitments, understandings and agreementsrelating to the subject matter hereof between the parties hereto.

 

**21.          No Construction as Employment Agreement.**Nothing contained in this Agreement shall be construed as giving Indemnitee anyright to be retained in the employ of the Company or any of its subsidiaries oraffiliated entities.

 

**22.          Subrogation.**  In the event of payment under this Agreement, the Company shallbe subrogated, to the extent of such payment, to all of the rights of recoveryof Indemnitee, who shall execute all documents required and shall do all actsas may be necessary to secure such rights and to enable the Company toeffective bring suit to enforce such rights.

 

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**IN WITNESS WHEREOF**,the parties hereto have executed this Indemnification Agreement as of the datefirst above written.

 
|                       | **CYMER, INC.** |
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|                       | By:             |   |   |
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|                       | Name:           |   |   |
|                       |            |   |   |
|                       | Title:          |   |   |
|                       |            |   |
|                       | Address:        | 17075  Thornmint Court |
|                       |            | San Diego,  CA 92127-1712 |
|                       |            | Tel:  (858) 385-7300 |
|                       |            | Fax:  (858) 385-7100 |
|                       |            |
|                       |            |
| **Agreed to and Accepted** |            |
|                       |            |
| **INDEMNITEE:**            |            |
|                       |            |
|                       |            |
|                       |            |   |
| (signature)                |            |
|                       |            |
|                       |            |   |
| (name of  Indemnitee)      |            |
|                       |            |
|                       |            |   |
|                       |            |
|                       |            |   |
| (address)                  |            |
|                            |                 |  |  |  |  |  |  |

 

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