**EXHIBIT 10.11****INDEMNIFICATION AGREEMENT**     AGREEMENTmade this _________ day of _________, 200 _________  between PLATO Learning, Inc., a Delaware corporation (the“Company”), and (the “Indemnitee”).     WHEREAS, it is essential to the Company and its stockholders to attract and retain qualifiedand capable directors, officers, employees, agents and fiduciaries;     WHEREAS, the Certificate of Incorporation of the Company (the “Certificate of Incorporation”)requires the Company to indemnify and advance expenses to its directors and officers to the extentnot prohibited by law and allows the Company to indemnify employees and agents;     WHEREAS, historically, basic protection against undue risk of personal liability of directorsand officers has been provided through insurance coverage affording reasonable protection atreasonable cost;     WHEREAS, it is presently uncertain whether, and to what extent, such insurance is or willcontinue to be available to the Company at a reasonable cost for the protection of Indemnitee;     WHEREAS, in recognition of Indemnitee’s need for protection against personal liability inorder to induce Indemnitee to serve or continue to serve the Company in an effective manner, and,in the case of directors and officers, to supplement or replace the Company’s directors’ andofficers’ liability insurance coverage, and in part to provide Indemnitee with specific contractualassurance that the protection promised by the Certificate of Incorporation will be available toIndemnitee (regardless of, among other things, any amendment to or revocation of the Certificate ofIncorporation or any change in the composition of the Company’s Board of Directors or anyacquisition transaction relating to the Company), the Company, with the prior approval of theCompany’s stockholders, wishes to provide the Indemnitee with the benefits contemplated by thisAgreement; and     WHEREAS, as a result of the provision of such benefits Indemnitee has agreed to serve or tocontinue to serve the Company;     NOW, THEREFORE, the parties hereto hereby agree as follows:     1. Definitions. The following terms, as used herein, shall have the followingrespective meanings:     (a) An Affiliate: of a specified Person is a Person who directly, or indirectlythrough one or more intermediaries, controls or is controlled by, or is under common control with,the Person specified. The term Associate used to indicate a relationship with any Personshall mean (i) any corporation or organization (other than the Company or a Subsidiary) of whichsuch Person is an officer or partner or is, directly or indirectly, the Beneficial Owner of ten(10) percent or more of any class of Equity Securities, (ii) any trust or other estate in whichsuch Person has a substantial beneficial interest or as to which such Person serves as trustee orin a similar fiduciary capacity (other than an Employee Plan Trustee), (iii) any Relative of suchPerson, or (iv) any officer or director of any corporation controlling or controlled by suchPerson.
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     (b) Beneficial Ownership: shall be determined, and a Person shall be theBeneficial Owner of all securities which such Person is deemed to own beneficially,pursuant to Rule 13d-3 of the General Rules and Regulations under the Securities Exchange Act of1934, as amended (or any successor rule or statutory provision), or, if such Rule 13d-3 shall berescinded and there shall be no successor rule or statutory provision thereto, pursuant to suchRule 13d-3 as in effect on the date hereof; provided, however, that a Person shall,in any event, also be deemed to be the Beneficial Owner of any Voting Shares: (A) of which suchPerson or any of its Affiliates or Associates is, directly or indirectly, the Beneficial Owner, or(B) of which such Person or any of its Affiliates or Associates has (i) the right to acquire(whether such right is exercisable immediately or only after the passage of time), pursuant to anyagreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights,warrants or options, or otherwise, or (ii) sole or shared voting or investment power with respectthereto pursuant to any agreement, arrangement, understanding, relationship or otherwise (but shallnot be deemed to be the Beneficial Owner of any Voting Shares solely by reason of a revocable proxygranted for a particular meeting of stockholders, pursuant to a public solicitation of proxies forsuch meeting, with respect to shares of which neither such Person nor any such Affiliate orAssociate is otherwise deemed the Beneficial Owner), or (C) of which any other Person is, directlyor indirectly, the Beneficial Owner if such first mentioned Person or any of its Affiliates orAssociates acts with such other Person as a partnership, syndicate or other group pursuant to anyagreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposingof any shares of capital stock of the Company; and providedfurther,however, that (i) no director or officer of the Company, nor any Associate or Affiliate ofany such director or officer, shall, solely by reason of any or all of such directors and officersacting in their capacities as such, be deemed for any purposes hereof, to be the Beneficial Ownerof any Voting Shares of which any other such director or officer (or any Associate or Affiliatethereof) is the Beneficial Owner and (ii) no trustee of an employee stock ownership or similar planof the Company or any Subsidiary (“Employee Plan Trustee”) or any Associate or Affiliate of anysuch Trustee, shall, solely by reason of being an Employee Plan Trustee, be deemed for any purposeshereof to be the Beneficial Owner of any Voting Shares held by or under any such plan.     (c) A Change in Control: shall be deemed to have occurred if (A) any Person (otherthan (i) the Company or any Subsidiary, (ii) any pension, profit sharing, employee stock ownershipor other employee benefit plan of the Company or any Subsidiary or any trustee of or fiduciary withrespect to any such plan when acting in such capacity, or (iii) any Person who is as of the datehereof the Beneficial Owner of 20% or more of the total voting power of the Voting Shares, is orbecomes, after the date of this Agreement, the Beneficial Owner of 20% or more of the total votingpower of the Voting Shares, (B) during any period of two consecutive years, individuals who at thebeginning of such period constitute the Board of Directors of the Company and any new directorwhose election or appointment by the Board of Directors or nomination or recommendation forelection by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of thedirectors then still in office who either were directors at the beginning of the period or whoseelection or nomination for election was previously so approved, cease for any reason to constitutea majority thereof, (C) the stockholders of the Company approve a merger or consolidation of theCompany with any other corporation, other than a merger or consolidation which would result in theVoting Shares of the Company outstanding immediately prior thereto continuing to represent (eitherby remaining outstanding or by being converted into Voting Shares of the surviving entity) at least80% of the total voting power represented by the Voting Shares of the Company or such survivingentity outstanding,or the stockholders of the Company approve a plan of complete liquidation of the
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Company or anagreement for the sale or disposition by the Company of all or substantially all of the Company’sassets or (D) a change in control of a nature that would be required to be reported in response toItem 6(e) of Schedule 14A of Regulation 14 promulgated under the Securities Exchange Act of 1934,as amended, as in effect on the date hereof.     (d) Claim: means any threatened, pending or completed action, suit, arbitration orproceeding, or any inquiry or investigation, whether brought by or in the right of the Company orotherwise, that Indemnitee in good faith believes might lead to the institution of any such action,suit, arbitration or proceeding, whether civil, criminal, administrative, investigative or other,or any appeal therefrom.     (e) Equity Security: shall have the meaning given to such term under Rule 3a11-1 ofthe General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on thedate hereof.     (f) D&O Insurance: means any valid directors’ and officers’ liability insurancepolicy maintained by the Company for the benefit of the Indemnitee, if any.     (g) Determination: means a determination, and Determined means a matterwhich has been determined based on the facts known at the time, by: (i) a majority vote of aquorum of disinterested directors, or (ii) if such a quorum is not obtainable, or even ifobtainable, if a quorum of disinterested directors so directs, by independent legal counsel in awritten opinion, or, in the event there has been a Change in Control, by the Special IndependentCounsel (in a written opinion) selected by Indemnitee as set forth in Section 6, or (iii) amajority of the disinterested stockholders of the Company, or (iv) a final adjudication by a courtof competent jurisdiction.     (h) Excluded Claim: means any payment for Losses or Expenses in connection with anyClaim: (i) based upon or attributable to Indemnitee gaining in fact any personal profit oradvantage to which Indemnitee is not entitled; or (ii) for the return by Indemnitee of anyremuneration paid to Indemnitee without the previous approval of the stockholders of the Companywhich is illegal; or (iii) for an accounting of profits in fact made from the purchase or sale byIndemnitee of securities of the Company within the meaning of Section 16 of the Securities ExchangeAct of 1934, as amended, or similar provisions of any state law; or (iv) resulting fromIndemnitee’s knowingly fraudulent, dishonest or willful misconduct; or (v) the payment of which bythe Company under this Agreement is not permitted by applicable law.     (i) Expenses: means any reasonable expenses incurred by Indemnitee as a result of aClaim or Claims made against Indemnitee for Indemnifiable Events including, without limitation,attorneys’ fees and all other costs, expenses and obligations paid or incurred in connection withinvestigating, defending, being a witness in or participating in (including on appeal), orpreparing to defend, be a witness in or participate in any Claim relating to any IndemnifiableEvent or to the Indemnitee’s rights under this Agreement.     (j) Fines: means any fine, penalty or, with respect to an employee benefit plan, anyexcise tax or penalty assessed with respect thereto.
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     (k) Indemnifiable Event: means any event or occurrence, occurring prior to or afterthe date of this Agreement, related to the fact that Indemnitee is, was or has agreed to serve as,a director, officer, committee member, employee, trustee, agent or fiduciary of the Company, or isor was serving at the request of the Company as a director, officer, manager, member, employee,trustee, agent or fiduciary of another corporation, partnership, limited liability company, jointventure, employee benefit plan, trust or other enterprise, or by reason of anything done or notdone by Indemnitee, including, but not limited to, any breach of duty, neglect, error,misstatement, misleading statement, omission, or other act done or wrongfully attempted byIndemnitee, or any of the foregoing alleged by any claimant, in any such capacity.     (l) Losses: means any amounts or sums which Indemnitee is legally obligated to payas a result of a Claim or Claims made against Indemnitee for Indemnifiable Events including,without limitation, damages, judgments and sums or amounts paid in settlement of a Claim or Claims,and Fines.     (m) Person: means any individual, partnership, corporation, limited liabilitycompany, business trust, joint stock company, trust, unincorporated association, joint venture,governmental authority or other entity of whatever nature.     (n) Potential Change in Control: shall be deemed to have occurred if (A) the Companyenters into an agreement, the consummation of which would result in the occurrence of a Change inControl; (B) any Person (including the Company) publicly announces an intention to take or toconsider taking actions which if consummated would constitute a Change in Control; (C) any Person(other than (i) the Company or any Subsidiary, (ii) any pension, profit sharing, employee stockownership or other employee benefit plan of the Company or any Subsidiary or any trustee of orfiduciary with respect to any such plan when acting in such capacity, or (iii) any person who is asof the date hereof the Beneficial Owner of 20% or more of the total voting power of the VotingShares), who is or becomes the Beneficial Owner of 9.5% or more of the total voting power of theVoting Shares, increases his Beneficial Ownership of such voting power by 5% or more of the totalvoting power over the percentage so owned by such Person on the date hereof; or (D) the Board ofDirectors adopts a resolution to the effect that, for purposes of this Agreement, a PotentialChange in Control has occurred.     (o) Relative: means a Person’s spouse, parents, children, siblings, mother- andfather-in-law, sons- and daughters-in-law, and brothers- and sisters-in-law.     (p) Reviewing Party: means any appropriate person or body consisting of a member ormembers of the Company’s Board of Directors or any other person or body appointed by the Board(including the Special Independent Counsel referred to in Section 6) who is not a party to theparticular Claim for which Indemnitee is seeking indemnification.     (q) Subsidiary: means any corporation of which a majority of any class of EquitySecurity is owned, directly or indirectly, by the Company.     (r) Trust: means the trust established pursuant to Section 7 hereof.     (s) Voting Shares: means any issued and outstanding shares of capital stock of theCompany entitled to vote generally in the election of directors.
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     2. Basic Indemnification Agreement. In consideration of, and as an inducement to,the Indemnitee rendering valuable services to the Company, the Company agrees that in the eventIndemnitee is or becomes a party to or witness or other participant in, or is threatened to be madea party to or witness or other participant in, a Claim by reason of (or arising in part out of) anIndemnifiable Event, the Company will indemnify Indemnitee to the fullest extent authorized by law,against any and all Losses and Expenses (including all interest, assessments and other charges paidor payable in connection with or in respect of such Losses and Expenses) of such Claim, whether ornot such Claim proceeds to judgment or is settled or otherwise is brought to a final disposition,subject in each case, to the further provisions of this Agreement.     3. Limitations on Indemnification. Notwithstanding the provisions of Section 2,Indemnitee shall not be indemnified and held harmless from any Losses or Expenses (a) which havebeen Determined, as provided herein, to constitute an Excluded Claim; (b) to the extent Indemniteeis indemnified by the Company and has actually received payment pursuant to the Certificate ofIncorporation, D&O Insurance or otherwise; or (c) other than pursuant to the last sentence ofSection 4(d) or Section 15, in connection with any claim initiated by Indemnitee, unless theCompany has joined in or the Board of Directors has authorized such claim.     4. Indemnification Procedures.     (a) Promptly after receipt by Indemnitee of notice of any Claim, Indemnitee shall, ifindemnification with respect thereto may be sought from the Company under this Agreement, notifythe Company of the commencement thereof; provided, however, that the failure togive such notice promptly shall not affect or limit the Company’s obligations with respect to thematters described in the notice of such Claim, except to the extent that the Company is prejudicedthereby. Indemnitee agrees further not to make any admission or effect any settlement with respectto such Claim without the consent of the Company, except any Claim with respect to which theIndemnitee has undertaken the defense in accordance with the second to last sentence of Section4(d).     (b) If, at the time of the receipt of such notice, the Company has D&O Insurance in effect,the Company shall give prompt notice of the commencement of Claim to the insurers in accordancewith the procedures set forth in the respective policies. The Company shall thereafter take allnecessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all Lossesand Expenses payable as a result of such Claim.     (c) To the extent the Company does not, at the time of the Claim have applicable D&OInsurance, or if a Determination is made that any Expenses arising out of such Claim will not bepayable under the D&O Insurance then in effect, the Company shall be obligated to pay the Expensesof any Claim in advance of the final disposition thereof and the Company, if appropriate, shall beentitled to assume the defense of such Claim, with counsel satisfactory to Indemnitee, upon thedelivery to Indemnitee of written notice of its election so to do. After delivery of such notice,the Company will not be liable to Indemnitee under this Agreement for any legal or other Expensessubsequently incurred by Indemnitee in connection with such defense other than reasonable Expensesof investigation; providedthat Indemnitee shall have the right to employ itscounsel in such Claim but the fees andexpenses of such counsel incurred after delivery of notice from the Company of its assumption ofsuch defense shall be at the Indemnitee’s expense; providedfurther that if: (i)the employment of counsel by Indemnitee has been previously authorized by the Company, (ii)Indemnitee shall have reasonably concluded that there may be a conflict of interest
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between theCompany and Indemnitee in the conduct of any such defense, or (iii) the Company shall not, in fact,have employed counsel to assume the defense of such action, the reasonable fees and expenses ofcounsel shall be at the expense of the Company.     (d) All payments on account of the Company’s indemnification obligations under this Agreementshall be made within sixty (60) days of Indemnitee’s written request therefor unless aDetermination is made that the Claims giving rise to Indemnitee’s request are Excluded Claims orotherwise not payable under this Agreement, providedthat all payments on accountof the Company’s obligation to pay Expenses under Section 4(c) of this Agreement prior to the finaldisposition of any Claim shall be made within 20 days of Indemnitee’s written request therefor andsuch obligation shall not be subject to any such Determination but shall be subject to Section 4(e)of this Agreement. In the event the Company takes the position that Indemnitee is not entitled toindemnification in connection with the proposed settlement of any Claim, Indemnitee shall have theright at his own expense to undertake defense of any such Claim, insofar as such proceedinginvolves Claims against the Indemnitee, by written notice given to the Company within 10 days afterthe Company has notified Indemnitee in writing of its contention that Indemnitee is not entitled toindemnification; provided, however, that the failure to give such notice withinsuch 10-day period shall not affect or limit the Company’s obligations with respect to any suchClaim if such Claim is subsequently determined not to be an Excluded Claim or otherwise to bepayable under this Agreement, except to the extent that the Company is prejudiced thereby. If itis subsequently determined in connection with such proceeding that the Indemnifiable Events are notExcluded Claims and that Indemnitee, therefor, is entitled to be indemnified under the provisionsof Section 2 hereof, the Company shall promptly indemnify Indemnitee.     (e) Indemnitee hereby expressly undertakes and agrees to reimburse the Company for all Lossesand Expenses paid by the Company in connection with any Claim against Indemnitee in the event andonly to the extent that a Determination shall have been made by a court of competent jurisdictionin a decision from which there is no further right to appeal that Indemnitee is not entitled to beindemnified by the Company for such Losses and Expenses because the Claim is an Excluded Claim orbecause Indemnitee is otherwise not entitled to payment under this Agreement.     (f) In connection with any Determination as to whether Indemnitee is entitled to beindemnified hereunder the burden of proof shall be on the Company to establish that Indemnitee isnot so entitled.     5. Settlement. The Company shall have no obligation to indemnify Indemnitee underthis Agreement for any amounts paid in settlement of any Claim effected without the Company’s priorwritten consent. The Company shall not settle any Claim in which it takes the position thatIndemnitee is not entitled to indemnification in connection with such settlement without theconsent of Indemnitee, nor shall the Company settle any Claim in any manner which would impose anyFine or any obligation on Indemnitee, without Indemnitee’s written consent. Neither the Companynor Indemnitee shall unreasonably withhold its or his consent to any proposed settlement.     6. Change in Control; Extraordinary Transactions. The Company and Indemnitee agreethat if there is a Change in Control of the Company (other than a Change in Control which has beenapproved by a majority of the Company’s Board of Directors who were directors immediately prior tosuch Change in Control) then all Determinations thereafter with respect to the rights of
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Indemniteeto be paid Losses and Expenses under this Agreement shall be made only by a special independentcounsel (the “Special Independent Counsel”) selected by Indemnitee and approved by the Company(which approval shall not be unreasonably withheld) or by a court of competent jurisdiction. TheCompany shall pay the reasonable fees of such Special Independent Counsel and shall indemnify suchSpecial Independent Counsel against any and all reasonable expenses (including reasonableattorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement orits engagement pursuant hereto.     The Company covenants and agrees that, in the event of a Change in Control of the typedescribed in clause (C) of Section 1(c), the Company will use its best efforts (a) to have theobligations of the Company under this Agreement including, but not limited to those under Section7, expressly assumed by the surviving, purchasing or succeeding entity, or (b) to otherwiseadequately provide for the satisfaction of the obligations of the Company under this Agreement, ina manner reasonably acceptable to the Indemnitee.     7. Establishment of Trust. In the event of a Potential Change in Control, theCompany shall, upon written request by Indemnitee, create a trust (the “Trust” for the benefit ofIndemnitee and from time to time upon written request of Indemnitee shall fund the Trust in anamount sufficient to satisfy any and all Losses and Expenses which are actually paid or whichIndemnitee reasonably determines from time to time may be payable by the Company under thisAgreement. The amount or amounts to be deposited in the Trust pursuant to the foregoing fundingobligation shall be determined by the Reviewing Party, in any case in which the Special IndependentCounsel is involved. The terms of the Trust shall provide that upon a Change in Control: (i) theTrust shall not be revoked or the principal thereof invaded without the written consent ofIndemnitee; (ii) the trustee of the Trust shall advance, within 20 days of a request by Indemnitee,any and all Expenses to Indemnitee (and Indemnitee hereby agrees to reimburse the Trust under thecircumstances under which Indemnitee would be required to reimburse the Company under Section 4 (e)of this Agreement); (iii) the Company shall continue to fund the Trust from time to time inaccordance with the funding obligations set forth above; (iv) the trustee of the Trust shallpromptly pay to Indemnitee all Losses and Expenses for which Indemnitee shall be entitled toindemnification pursuant to this Agreement; and (v) all unexpected funds in the Trust shall revertto the Company upon a final determination by a court of competent jurisdiction in a final decisionfrom which there is no further right of appeal that Indemnitee has been fully indemnified under theterms of this Agreement. The trustee of the Trust shall be chosen by Indemnitee.     8. No Presumption. For purposes of this Agreement, the termination of any Claim byjudgment, order, settlement (whether with or without court approval) or conviction, or upon a pleaof nolocontendere, or its equivalent, shall not, of itself, create a presumptionthat Indemnitee did not meet any particular standard of conduct or have any particular belief orthat a court has determined that indemnification is not permitted by applicable law.     9. Non-exclusivity, Etc. The rights of Indemnitee hereunder shall be in addition toany other rights Indemnitee may have under the Certificate of Incorporation, the Company’s By-laws,theDelaware General Corporation Law, any vote of stockholders or disinterested directors or otherwise,both as to action in Indemnitee’s official capacity and as to action in any other capacity byholding such office, and shall continue after Indemnitee ceases to serve the Company as a director,officer, employee, agent or fiduciary, for so long as Indemnitee shall be subject to any Claim byreason of (or arising in part out of) an Indemnifiable Event. To the extent that a change in the
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Delaware General Corporation Law (whether by statute or judicial decision) permits greaterindemnification by agreement than would be afforded currently under the Certificate ofIncorporation and this Agreement, it is the intent of the parties hereto that Indemnitee shallenjoy by this Agreement the greater benefits so afforded by such change.     10. Liability Insurance. to the extent the Company maintains an insurance policy orpolicies providing directors’ and officers’ liability insurance, Indemnitee, if an officer ordirector of the Company, shall be covered by such policy or policies, in accordance with its ortheir terms, to the maximum extent of the coverage available for any director or officer of theCompany.     11. Subrogation. In the event of payment under this Agreement, the Company shall besubrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shallexecute all papers required and shall do everything that may be necessary to secure such rights,including the execution of such documents necessary to enable the Company effectively to bring suitto enforce such rights.     12. Partial Indemnity, Etc. If Indemnitee is entitled under any provision of thisAgreement to indemnification by the Company for some or portion of the Losses and Expenses of aClaim but not, however, for all of the total amount thereof, the Company shall neverthelessindemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover,notwithstanding any other provision of this Agreement, to the extent that Indemnitee has beensuccessful on the merits or otherwise in defense of any or all Claims relating in whole or in partto any Indemnifiable Event or in defense of any issue or matter therein, including dismissalwithout prejudice, Indemnitee shall be indemnified against all Expenses incurred in connectiontherewith.     13. Contribution. If the indemnification or reimbursement provided for hereunder isfinally judicially determined by a court of competent jurisdiction to be unavailable to Indemniteein respect of any Losses or Expenses of a Claim (other than for any reason specified in Section 3hereof), then the Company agrees, to the extent permitted by applicable law, in lieu ofindemnifying Indemnitee, to contribute to the amount paid or payable by Indemnitee as a result ofsuch Losses or Expenses in such proportion as is appropriate to reflect the relative benefitsaccruing to the Company and Indemnitee with respect to the events giving rise to such Losses orExpenses. If, however, the allocation provided by the immediately preceding sentence is notpermitted by applicable law, then the Company agrees to contribute to the amount paid or payable byIndemnitee as a result of such Losses or Expenses in such proportion as is appropriate to reflectnot only such relative benefits but also the relative fault of the Company and of Indemnitee withrespect to the events giving rise to such Losses or Expenses. For purposes of this Section 13,(i) the relative benefits accruing to the Company shall be deemed to be the benefits accruing to itand to all of its directors, officers, employees and agents (other than Indemnitee), as a group andtreated as one person (the “Company Group”), and the relative benefits accruing to Indemnitee shallbe deemed to be an amount not greater than Indemnitee’s compensation from the Company during thefirst year in which the events giving rise to such Losses or Expenses are alleged to have occurred,and (ii) the relative fault of the Company shall be deemed to bethe fault of the Company Group, and the relative fault of the Company and Indemnitee shall bedetermined by reference to the relative intent, knowledge and access to information of the CompanyGroup and Indemnitee and their relative opportunity to have altered or prevented the events givingrise to such Losses or Expenses.
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     14. Liability of Company. Indemnitee agrees that neither the stockholders nor thedirectors nor any officer, employee, representative or agent of the Company shall be personallyliable for the satisfaction of the Company’s obligations under this Agreement and Indemnitee shalllook solely to the assets of the Company for satisfaction of any claims hereunder.     15. Enforcement.     (a) Indemnitee’s right to indemnification and other rights under this Agreement shall bespecifically enforceable by Indemnitee only in the state or Federal courts of the States ofDelaware and shall be enforceable notwithstanding any adverse Determination by the Company’s Boardof Directors, independent legal counsel, the Special Independent Counsel or the Company’sstockholders and no such Determination shall create a presumption that Indemnitee is not entitledto be indemnified hereunder. In any such action the Company shall have the burden of proving thatindemnification is not required under this Agreement.     (b) In the event that any action is instituted by Indemnitee under this Agreement, or toenforce or interpret any of the terms of this Agreement, Indemnitee shall be entitled to be paidall court costs and reasonable expenses, including reasonable counsel fees, incurred by Indemniteewith respect to such action, unless the court determines that each of the material assertions madeby Indemnitee as a basis for such action was not made in good faith or was frivolous.     16. Severability. In the event that any provision of this Agreement is determined bya court to require the Company to do or to fail to do an act which is in violation of applicablelaw, such provision (including any provision within a single section, paragraph or sentence) shallbe limited or modified in its application to the minimum extent necessary to avoid a violation oflaw, and, as so limited or modified, such provision and the balance of this Agreement shall beenforceable in accordance with their terms to the fullest extent permitted by law.     17. Governing Law. This Agreement shall be governed by and construed in accordancewith the laws of the State of Delaware applicable to agreements made and to be performed entirelywithin such State.     18. Consent to Jurisdiction. The Company and Indemnitee each hereby irrevocablyconsents to the jurisdiction of the courts of the State of Delaware for all purposes in connectionwith any action or proceeding which arises out of or relates to this Agreement and agrees that anyaction instituted under this Agreement shall be brought only in the state and Federal courts of theState of Delaware.     19. Notices. All notices or other communications required or permitted hereundershall be sufficiently given for all purposes if in writing and personally delivered, telegraphed,telexed, sent by facsimile transmission or sent by registered or certified mail, return receiptrequested, withpostage prepaid addressed as follows, or to such other address as the parties shall have givennotice of pursuant hereto:     (a) If to the Company, to:PLATO Learning, Inc.