**Exhibit 10.46**

 

**INDEMNIFICATION AGREEMENT**

 

This Agreement is made and entered into this              day of                    , 2004 (“Agreement”) by and between Columbia Laboratories, Inc., a Delaware corporation(“Corporation”) and                      (“Indemnitee”). 

 

WHEREAS the Board of Directors (the “Board”) has determined that the best interests of the Corporation requirethat persons serving as directors of, and in other capacities for, the Corporation receive better protection from the risk of claims and actions against them arising out of their service to and activities on behalf of such corporations; and

 

WHEREAS, this Agreement is a supplement to and in furtheranceof Article VI of the amended and restated by-laws of the Corporation, any rights granted by the Certification of Incorporation of the Corporation and any resolutions adopted pursuant thereto and shall not be deemed to be a substitute therefore norto diminish or abrogate any rights of the Indemnitee thereunder; and 

 

WHEREAS, Indemnitee is willing to serve, continue to serve and take on additional service for or on behalf of the Corporation on the condition that Indemnitee be indemnified according to the terms of this Agreement; 

 

NOW, THEREFORE, in consideration of the premises and the covenants containedherein, the Corporation and Indemnitee do hereby covenant and agree as follows: 

 

**Section 1. Definitions.**

 

For purposesof this Agreement: 

 

(a) “Change in Control” shall bedeemed to have occurred if (a) there shall have consummated (i) any consolidation or merger of Company in which Company is not the continuing or surviving entity or pursuant to which shares of Company’s common stock would be converted to cash,securities or other property, other than a merger of Company in which the holders of Company’s common stock immediately prior to the merger have the same proportionate ownership of common stock of the surviving entity immediately after themerger, or (ii) any sale, lease, exchange or transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the company; or (b) the stockholders of the Company approve a plan or proposal for theliquidation or dissolution of the Company; or (c) any person (as that term is used in Sections 13(d) and 14(d)(z) of the Securities and Exchange Act, as amended (the “Exchange Act”)) shall become a beneficial owner (within the meaning ofRule 13d-2 under the Exchange Act) of 40% or more of Company’s outstanding common stock; or (d) during any period of two consecutive years, individuals who at the beginning of such period constitute the entire Board shall cease for any reasonto constitute a majority thereof unless the election, or the nomination for election by Company’s stockholders, of each new director was approved by a vote of at least 50% of the directors eligible to vote who were directors at the beginning ofthe period. 

(b) “Disinterested Director” means a director of the Corporation who is not and was not a partyto the Proceeding in respect of which indemnification is sought by Indemnitee. 

 

(c) “Effective Date” means                     . 

 

(d) “Expenses” mean all reasonable attorneys’ fees, retainers,court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements and expenses of the type customarily incurredin connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or preparing to be a witness in a Proceeding. 

 

(e) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presentlyis, nor in the past five years has been, retained to represent: (i) the Corporation or Indemnitee in any other matter material to either such party, or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder.Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either theCorporation or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. 

 

(f) “Proceeding” means an action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative hearing or any otherproceeding, whether civil, criminal, administrative or investigative, except one initiated by an Indemnitee pursuant to Section 11 of this Agreement to enforce Indemnitee’s rights under this Agreement. 

 

**Section 2. Services by Indemnitee.**

 

Indemnitee agrees to serve as an officer or director of the corporation,and, at its request, as a director, officer, employee, agent or fiduciary of certain other corporations and entities. Indemnitee may at any time and for any reason resign from any such position (subject to any other contractual obligation or anyobligation imposed by operation of law). 

 

**Section 3. Indemnification -General.**

 

The Corporation shall indemnify, and advanceExpenses to, Indemnitee as provided in this Agreement to the fullest extent permitted by applicable law in effect on the date hereof and to such greater extent as applicable law may thereafter from time to time permit. The rights of Indemniteeprovided under the preceding sentence shall include, but shall not be limited to, the rights set forth in the other Sections of this Agreement. 

 

**Section 4. Proceeding Other Than Proceedings by or in the Right of the Corporation.**

 

Indemnitee shall be entitled to the rights of indemnification provided in this Section if, by reason of Indemnitee’semployment or service as an officer or director, Indemnitee is, or is threatened to be made, a party to any threatened, pending or completed Proceeding, other than a 

 

2 

Proceeding brought by or in the right of the Corporation to procure a judgment in its favor. Pursuant to this Section,Indemnitee shall be indemnified against Expenses, judgments, penalties, fines and amounts paid in settlement, actually and reasonable incurred by Indemnitee or on Indemnitee’s behalf in connection with any such Proceeding if Indemnitee acted ingood faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal Proceeding, had no reasonable cause to believe Indemnitee’s conduct was unlawful.

 

**Section 5. Proceedings by or in the Right of the Corporation.**

 

Indemnitee shall be entitled to the rights ofindemnification provided in this Section if, by reason of his Corporate Status, Indemnitee is, or is threatened to be made, a party to any threatened, pending or completed Proceeding brought by or in the right of the Corporation to procure ajudgment in its favor. Pursuant to this Section, Indemnitee shall be indemnified against Expenses, judgments, penalties, fines and amounts paid in settlement, actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf inconnection with any such Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation. Notwithstanding the foregoing, no indemnification against suchExpenses shall be made in respect of any claim, issue or matter in any such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Corporation if applicable law prohibits such indemnification unless the Court of Chancery ofthe State of Delaware, or the court in which such Proceeding shall have been brought or is pending, shall determine that indemnification against Expenses may nevertheless be made by the Corporation. 

 

**Section 6. Indemnification for Expenses of a Party Who is Wholly or PartlySuccessful.**

 

Notwithstanding any other provision ofthis Agreement, to the extent that Indemnitee is, by reason of Indemnitee’s employment or service as an officer or director, a party to and is successful, on the merits or otherwise, in any Proceeding, Indemnitee shall be indemnified againstall Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but lessthan all claims, issues or matters in such Proceeding, the Corporation shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with each successfully resolved claim,issue or matter. For the purposes of this Section and without limiting the foregoing, the termination of any claim, issue or matter in any such Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to suchclaim, issue or matter. 

 

**Section 7. Indemnification for Expenses of aWitness.**

 

Notwithstanding any other provision of thisAgreement, to the extent that Indemnitee is, by reason of Indemnitee’s employment or service as an officer or director, a witness in any Proceeding, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred byIndemnitee or on Indemnitee’s behalf in connection therewith. 

 

3 

**Section 8. Advancement of Expenses.**

 

The Corporation shall advance all Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding withinthirty (30) days after the receipt by the Corporation of a statement or statement from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statementsshall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is notentitled to be indemnified against such Expenses. 

 

**Section 9. Procedurefor Determination of Entitlement to Indemnification.**

 

(a) To obtain indemnification under this Agreement in connection with any Proceeding, and for the duration thereof, Indemnitee shall submit to the Corporation a written request, including therein or therewith such documentation andinformation as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Corporation shall, promptly upon receipt of any such request forindemnification, advise the board in writing that Indemnitee has requested indemnification. 

 

(b) Upon written request by Indemnitee for indemnification pursuant to Section 9(a) hereof, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in suchcase: (i) if a Change in Control shall have occurred, by Independent Counsel (unless Indemnitee shall request that such determination be made by the Board or the stockholders in the manner provided for in clauses (ii) or (iii) or this Section 9(b))in written opinion to the Board, a copy of which shall be delivered to Indemnitee; (ii) if a Change of Control shall not have occurred, (A) by the Board by a majority vote of a quorum consisting of Disinterested Directors, or (B) if a quorum of theBoard consisting of Disinterested Directors is not obtainable, or even if such quorum is obtainable, if such quorum of Disinterested Directors so directs, either (x) by Independent Counsel in a written opinion to the Board, a copy of which shall bedelivered to Indemnitee, or (y) by the stockholders of the Corporation, as determined by such quorum of Disinterested Directors, or a quorum of the Board, as the case may be; or (iii) as provided in Section 10(b) of this Agreement. If it is sodetermined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within thirty (30) days after such determination. Indemnitee shall cooperate with the persons or entity making such determination with respect toIndemnitee’s entitlement to indemnification, including providing to such persons or entity upon request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available toIndemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the persons or entity making such determination shall be borne by theCorporation (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Corporation hereby indemnifies and agrees to hold Indemnitee harmless therefrom. 

 

4 

(c) If required, Independent Counsel shall be selected as follows: (i) if a Change of Control shall nothave occurred, Independent Counsel shall be selected by the Board by a majority vote of a quorum consisting of Disinterested Directors and the Corporation shall give written notice to Indemnitee advising Indemnitee of the identity of IndependentCounsel so selected; or (ii) if a Change of Control shall have occurred, Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event (i) shall apply), and Indemniteeshall give written notice to the Corporation advising it of the identity of Independent Counsel so selected. In either event, Indemnitee or the Corporation, as the case may be, may, within seven (7) days after such written notice of selection shallhave been given, deliver to the Corporation or to Indemnitee, as the case may be, a written objection to such selection. Such objection may be asserted only on the ground that Independent Counsel so selected does not meet the requirements of“Independent Counsel” as defined in Section 1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is made, Independent Counsel so selected may not serve asIndependent Counsel unless and until a court has determined that such objection is without merit. If, within twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 9(a) hereof, no IndependentCounsel shall have been selected and not objected to, either the Corporation or Indemnitee may petition the Court of Chancery of the State of Delaware, or any court in the State of New Jersey in which such petition would be cognizable, forresolution of any objection which shall have been made by the Corporation or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by such court or by such other personas such court shall designate, and the person with respect to whom an objection is so resolved or the person so appointed shall act as Independent Counsel under Section 9(b) hereof. The Corporation shall pay any and all reasonable fees and expensesincurred by such Independent Counsel in connection with its actions pursuant to this Agreement, and the Corporation shall pay all reasonable fees and expenses incident to the procedures of this Section 9(c) regardless of the manner in which suchIndependent Counsel was selected or appointed. Upon the due commencement date of any judicial proceeding pursuant to Section 11(a)(iii) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in suchcapacity (subject to the applicable standards of professional conduct then prevailing). 

 

**Section 10. Presumptions and Effects of Certain Proceedings.**

 

(a) If a Change in Control shall have occurred, in making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume thatIndemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 9(a) of this Agreement, and the Corporation shall have the burden of proof to overcome thatpresumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. 

 

(b) The person or entity empowered or selected under Section 8 of this Agreement shall make the determination of whether Indemnitee is entitled toindemnification as soon as practicable after receipt by the Corporation of the request therefore. 

 

5 

(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order,settlement or conviction, or upon a plea of *nolo contendere* or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumptionthat Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause tobelieve that Indemnitee’s conduct was unlawful. 

 

**Section 11.Remedies of Indemnitee.**

 

(a) In the event that (i) adetermination is made pursuant to Section 9 or 10 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8 of this Agreement, (iii) thedetermination of entitlement to indemnification is made by Independent Counsel pursuant to Section 9 of this Agreement and such determination shall not have been made and delivered in a written opinion within ninety (90) days after receipt by theCorporation of the request for indemnification, (iv) or (iv) payment of indemnification is not made within thirty (30) days after such determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to havebeen made pursuant to Sections 9 or 10 of this Agreement, Indemnitee shall be entitled to an adjudication in an appropriate court of the State of Delaware or the State of New Jersey, of Indemnitee’s entitlement to such indemnification oradvancement of Expenses. Indemnitee shall commence such proceeding seeking an adjudication or an award within one hundred eighty (180) days following the date on which Indemnitee first has the right to commence such proceeding pursuant to thisSection 11(a). 

 

(b) In the event that a determination shallhave been made pursuant to Section 9 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section shall be conducted in all respects as a *de novo* trial and Indemnitee shallnot be prejudiced by any reason of that adverse determination. If a Change of Control shall have occurred, in any judicial proceeding commenced pursuant to this Section the Corporation shall have the burden of proving that Indemnitee is not entitledto indemnification or advancement of Expenses, as the case may be. 

 

(c) If a determination shall have been made or deemed to have been made pursuant to Section 9 or 10 of this Agreement that Indemnitee is entitled to indemnification, the Corporation shall be bound by such determination in any judicialproceeding commenced pursuant to this Section, absent (i) a misstatement by Indemnitee or Indemnitee’s representative of a material fact, or an omission of any material fact necessary to make Indemnitee’s or Indemnitee’srepresentative’s statement not materially misleading, in connection with the request for indemnification, or (ii) prohibition of such indemnification under applicable law. 

 

(d) The Corporation shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section that theprocedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Corporation is bound by all the provisions of this Agreement. 

 

6 

(e) In the event that Indemnitee, pursuant to this Section, seeks a judicial adjudication ofIndemnitee’s rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Corporation and shall be indemnified by the Corporation against, any and all expenses (of the kinds described inthe definition of Expenses) actually and reasonably incurred by Indemnitee in such judicial adjudication, but only if Indemnitee prevails therein. If it shall be determined that Indemnitee is entitled to receive part but not all of theindemnification or advancement of expenses sought, the expenses incurred by Indemnitee in connection with such judicial adjudication shall be appropriately prorated. 

 

**Section 12. Non-Exclusivity; Survival of Rights; Insurance Subrogation.**

 

(a) The rights of indemnification and to receive advancement of Expenses asprovided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the certificate of incorporation or by-laws of the Corporation, any agreement, a vote of stockholdersor resolution of directors or otherwise. No amendment, alteration or repeal of this Agreement or any provision hereof shall be effective as to any Indemnitee with respect to any action taken or omitted by such Indemnitee in Indemnitee’semployment or service as an officer or director prior to such amendment, alteration or repeal. 

 

(b) To the extent that the corporation maintains an insurance policy or policies providing liability insurance for directors, officers, employees, agents or fiduciaries of the corporation or of any other corporation,partnership, joint venture, trust, employee benefit plan or other enterprise which such person serves at the request of the Corporation, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximumextent of the coverage available for any such director, officer, employee, agent or fiduciary under such policy or policies. 

 

(c) In the event of any payment under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recoveryof Indemnitee who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Corporation to bring suit to enforce such rights. 

 

(d) The Corporation shall not be liable under this Agreement to make anypayment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise. 

 

**Section 13. Duration of Agreement.**

 

This Agreement shall continue until and terminate upon the later of: (a) ten(10) years after the date that Indemnitee shall have ceased to serve as a director, officer, employee, agent or fiduciary of the Corporation or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprisewhich Indemnitee served at the request of the Corporation; (b) the final termination of all pending Proceedings in respect of which Indemnitee 

 

7 

is granted rights of indemnification or advancement of Expenses hereunder and of any proceeding commenced by Indemniteepursuant to Section 11 of this Agreement. This Agreement shall be binding upon the Corporation and its successors and assigns and shall inure to the benefit of Indemnitee and Indemnitee’s heirs. 

 

**Section 14. Severability.**

 

If any provision or provisions of this Agreement shall be held to beinvalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing anysuch provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal unenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement(including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effectto the intent manifested by the provision held invalid, illegal or unenforceable. 

 

**Section 15. Exception to Right of Indemnification or Advancement of Expenses.**

 

Except as provided in Section 11(e), Indemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement with respect toany Proceeding, or any claim therein, brought or made by Indemnitee against the Corporation. For the purposes of this Section 15, a Proceeding in the right of the Corporation shall not be deemed to constitute a Proceeding brought or made by theCorporation. 

 

**Section 16. Identical Counterparts.**

 

This Agreement may be executed in one or more counterparts, each of whichshall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence theexistence of this Agreement. 

 

**Section 17. Headings.**

 

The headings of the paragraphs of this Agreement are inserted forconvenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof. 

 

**Section 18. Modification and Waiver.**

 

No supplement, modification or amendment to this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any ofthe provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver. 

 

8 

**Section 19. Notice by Indemnitee.**

 

Indemnitee agrees promptly to notify the Corporation in writing upon being served with any summons, citation, subpoena,complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder. 

 
      
COLUMBIA LABORATORIES, INC.
  
 
   
By:
 
 
  
                    , Indemnitee
     
Name:
        
Title:

 

I, [name], [title], certify that theBoard of Directors has authorized the Corporation to enter into this Agreement by a resolution unanimously passed at its [date] meeting. 

 

 

Name:

Title:

 

9