Unassociated Document


    
      Exhibit
4.1

    

     

    WARRANT
AGREEMENT

     

    This
Warrant Agreement made as of April 21, 2010, is between Nile Therapeutics, Inc.,
a Delaware corporation, with offices at 4 West 4th Avenue, Suite 400, San Mateo,
CA (the “Company”),
and American Stock Transfer & Trust Company, LLC, with offices at 6201 15th
Avenue, Brooklyn, NY (the “Warrant Agent”).

     

    WHEREAS,
the Company is engaged in a public offering of units, each unit comprised of one
share of Common Stock (as defined below) and 0.30 Warrants (as defined below)
and, in connection therewith, has determined to issue and deliver up to
2,242,500 warrants (the “Warrants”) to the investors in
the public offering, each Warrant evidencing the right of the holder thereof to
purchase one share of the Company’s common stock, par value $.001 per
share (the “Common
Stock”), for $0.94, subject to adjustment as described
herein;

     

    WHEREAS,
the Company has filed with the Securities and Exchange Commission a registration
statement on Form S-3 (File No. 333-165167) (the “Registration Statement”), for
the registration under the Securities Act of 1933, as amended (the “Act”), of, among other
securities, the Warrants and the Common Stock issuable upon exercise of the
Warrants;

     

    WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption and exercise of the
Warrants;

     

    WHEREAS,
the Company desires to provide for the form and provisions of the Warrants, the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights and immunities of the Company, the Warrant Agent and the
holders of the Warrants; and

     

    WHEREAS,
all acts and things have been done and performed which are necessary to make the
Warrants, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided herein, the legally valid and binding
obligations of the Company, and to authorize the execution and delivery of this
Warrant Agreement.

     

    NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:

     

    1.    
       Appointment of Warrant
Agent. The Company hereby appoints the Warrant Agent to act as agent for
the Company for the Warrants, and the Warrant Agent hereby accepts such
appointment and agrees to perform the same in accordance with the terms and
conditions set forth in this Agreement.

     

    2.       
    Warrants.

     

    2.1           Form of Warrant. Each
Warrant shall be (a) issued in registered form only, (b) in substantially the
form of Exhibit
A attached hereto, the provisions of which are incorporated herein, and
(c) signed by, or bear the facsimile signature of, (i) the Chairman of the
Board, the Chief Executive Officer or the President, and (ii) the Treasurer,
Secretary or Assistant Secretary of the Company. In the event a person whose
facsimile signature has been placed upon any Warrant shall have ceased to serve
in the capacity in which such person signed the Warrant before such Warrant is
issued, it may be issued with the same effect as if he or she had not ceased to
be such at the date of issuance.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    2.2           Effect of
Countersignature. Unless and until countersigned by the Warrant Agent
pursuant to this Agreement, a Warrant shall be invalid and of no effect and may
not be exercised by the holder thereof.  Warrant certificates shall be
dated the date of countersignature by the Warrant Agent.

     

    2.3           Registration.

     

    2.3.1           Warrant Register. The
Warrant Agent shall maintain books (“Warrant Register”), for the
registration of the original issuance and transfers of the Warrants. Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective holders thereof in such denominations
and otherwise in accordance with instructions delivered to the Warrant Agent by
the Company.

     

    2.3.2           Registered Holder.
Prior to due presentment for registration of transfer of any Warrant, the
Company and the Warrant Agent may deem and treat the person in whose name such
Warrant shall be registered upon the Warrant Register (“Registered Holder”), as the
absolute owner of such Warrant and of each Warrant represented thereby
(notwithstanding any notation of ownership or other writing on the warrant
certificate made by anyone other than the Company or the Warrant Agent), for the
purpose of any exercise thereof, and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the
contrary.

     

    3.           Terms and Exercise of
Warrants.

     

    3.1           Warrant Price. Each
Warrant shall, when countersigned by the Warrant Agent, entitle the Registered
Holder thereof, subject to the provisions of such Warrant and of this Warrant
Agreement, to purchase from the Company the number of shares of Common Stock
stated therein, at the price of $0.94 per whole share, subject to the
adjustments provided in Section 4 hereof and in the last sentence of this
Section 3.1. The term “Warrant
Price” as used in this Warrant Agreement refers to the price per share at
which Common Stock may be purchased at the time a Warrant is exercised. The
Company, in its sole discretion, may lower the Warrant Price at any time prior
to the Expiration Date (as defined below); provided, that any such reduction
shall be identical in percentage terms among all of the Warrants.

     

    3.2           Duration of Warrants.
The Warrants will be exercisable until 5:00 p.m., New York City time, on the
Expiration Date.  For purposes of this Warrant Agreement, the “Expiration Date” shall mean
the earlier to occur of (i) April 21, 2015, or (ii) the date fixed for
redemption of the Warrants as provided in Section 6 of this
Agreement.  Except with respect to the right to receive the Redemption
Price (as set forth in Section 6 hereunder), each Warrant not exercised on or
before the Expiration Date shall become void, and all rights thereunder and all
rights in respect thereof under this Agreement shall cease at the close of
business on the Expiration Date. The Company may extend the duration of the
Warrants by delaying the Expiration Date; provided, however, that the Company
will provide notice to registered holders of the Warrants of such extension of
not less than 20 days.

     
 

    
      
        
        

      

      
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    3.3           Exercise of
Warrants.

     

    3.3.1           Payment. Subject to
the provisions of the Warrant and this Warrant Agreement, a Warrant, when
countersigned by the Warrant Agent, may be exercised by the Registered Holder
thereof by surrendering it, at the office of the Warrant Agent, or at the office
of its successor as Warrant Agent, with the subscription form, as set forth in
the Warrant, duly executed, and by paying in full, in lawful money of the United
States, by certified check made payable to the Company or by wire transfer of
immediately available funds to an account designated by the Company (or as
otherwise agreed to by the Company), the Warrant Price for each full share of
Common Stock as to which the Warrant is exercised and any and all applicable
taxes due in connection with the exercise of the Warrant, the exchange of the
Warrant for the Common Stock, and the issuance of the Common
Stock.  In no event shall the Registered Holder of any Warrant be
entitled to “net cash settle” the Warrant.

     

    3.3.2           Issuance of
Certificates. As soon as practicable after the exercise of any Warrant
and the clearance of the funds in payment of the Warrant Price, the Company
shall issue to the Registered Holder of such Warrant a certificate or
certificates representing the number of full shares of Common Stock to which he,
she or it is entitled, registered in such name or names as may be directed by
him, her or it, and, if such Warrant shall not have been exercised or
surrendered in full, a new countersigned Warrant for the number of shares as to
which such Warrant shall not have been exercised or
surrendered.  Subject to Section 7.4 and notwithstanding the
foregoing, the Company shall not be obligated to deliver any securities pursuant
to the exercise of a Warrant unless (a) a registration statement under the Act
with respect to the Common Stock issuable upon exercise of such Warrants is
effective and a current prospectus relating to the shares of Common Stock
issuable upon exercise of the Warrants is available for delivery to the Warrant
holders or (b) in the opinion of counsel to the Company, the exercise of the
Warrants is exempt from the registration requirements of the Act and such
securities are qualified for sale or exempt from qualification under applicable
securities laws of the states or other jurisdictions in which the Registered
Holder resides. Warrants may not be exercised by, or securities issued to, any
Registered Holder in any state in which such exercise or issuance would be
unlawful. In the event a registration statement under the Act with respect to
the Common Stock underlying the Warrants is not effective or a prospectus is not
available, or because such exercise would be unlawful with respect to a
Registered Holder in any state, the Registered Holder shall not be entitled to
exercise such Warrants and such Warrants may have no value and expire worthless.
 In no event will the Company be obligated to pay such Registered Holder
any cash consideration upon exercise (except pursuant to Section
4.5).

     

    3.3.3           Valid Issuance. All
shares of Common Stock issued upon the proper exercise or surrender of a Warrant
in conformity with this Agreement shall be validly issued, fully paid and
nonassessable.

     

    
      
        
        

      

      
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    3.3.4           Date of Issuance.
Each person or entity in whose name any such certificate for shares of Common
Stock is issued shall, for all purposes, be deemed to have become the holder of
record of such shares on the date on which the Warrant was surrendered and
payment of the Warrant Price was made, irrespective of the date of delivery of
such certificate, except that, if the date of such surrender and payment is a
date when the stock transfer books of the Company are closed, such person shall
be deemed to have become the holder of such shares at the close of business on
the next succeeding date on which the stock transfer books are
open.

    


    3.4           Disposition of Proceeds on
Exercise of Warrants.  The Warrant Agent shall promptly forward
to the Company all monies received by the Warrant Agent for the purchase of
shares of Common Stock through the exercise of Warrants.

     

    4.       
     Adjustments.

     

    4.1           Stock Dividends -
Split-Ups. If, after the date hereof, and subject to the provisions of
Section 4.6 below, the number of outstanding shares of Common Stock is increased
by a stock dividend payable in shares of Common Stock, or by a split-up of
shares of Common Stock, or other similar event, then, on the effective date of
such stock dividend, split-up or similar event, the number of shares of Common
Stock issuable on exercise of each Warrant shall be increased in proportion to
such increase in outstanding shares of Common Stock.

     

    4.2           Aggregation of
Shares. If, after the date hereof, and subject to the provisions of
Section 4.6, the number of outstanding shares of Common Stock is decreased by a
consolidation, combination, reverse stock split or reclassification of shares of
Common Stock or other similar event, then, on the effective date of such
consolidation, combination, reverse stock split, reclassification or similar
event, the number of shares of Common Stock issuable on exercise of each Warrant
shall be decreased in proportion to such decrease in outstanding shares of
Common Stock.

     

    4.3           Adjustments in Warrant
Price. Whenever the number of shares of Common Stock purchasable upon the
exercise of the Warrants is adjusted, as provided in Sections 4.1 and 4.2 above,
the Warrant Price shall be adjusted (to the nearest cent) by multiplying such
Warrant Price, immediately prior to such adjustment, by a fraction, (a) the
numerator of which shall be the number of shares of Common Stock purchasable
upon the exercise of the Warrants immediately prior to such adjustment, and (b)
the denominator of which shall be the number of shares of Common Stock so
purchasable immediately thereafter.

     

    4.4           Extraordinary
Dividends. If the Company, at any time prior to the Expiration Date,
shall pay a dividend in cash, securities or other assets to the holders of
Common Stock (or other shares of the Company’s capital stock into which the
Warrants are convertible), other than (i) as described in Sections 4.1, 4.2 or
4.5 or (ii) regular quarterly or other periodic dividends (any such non-excluded
event being referred to herein as an “Extraordinary Dividend”), then
the Warrant Price shall be decreased, effective immediately after the effective
date of such Extraordinary Dividend, by the amount of cash and/or the fair
market value (as determined by the Company’s Board of Directors, in good faith)
of any securities or other assets paid on each share of Common Stock in respect
of such Extraordinary Dividend.

     

    
      
        
        

      

      
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    4.5           Replacement of Securities
upon Reorganization, etc. In case of any reclassification or
reorganization of the outstanding shares of Common Stock (other than a change
covered by Sections 4.1 or 4.2 hereof or one that solely affects the par value
of such shares of Common Stock), or, in the case of any merger or consolidation
of the Company with or into another corporation (other than a consolidation or
merger in which the Company is the continuing corporation and that does not
result in any reclassification or reorganization of the outstanding shares of
Common Stock), or, in the case of any sale or conveyance to another corporation
or entity of the assets or other property of the Company as an entirety or
substantially as an entirety, in connection with which the Company is dissolved,
the Warrant holders shall thereafter have the right to purchase and receive,
upon the basis and upon the terms and conditions specified in the Warrants and
in lieu of the shares of Common Stock of the Company immediately theretofore
purchasable and receivable upon the exercise of the rights represented thereby,
the kind and amount of shares of stock or other securities or property
(including cash) receivable upon such reclassification, reorganization, merger
or consolidation, or upon a dissolution following any such sale or transfer,
that the Warrant holder would have received if such Warrant holder had exercised
his, her or its Warrant(s) immediately prior to such event; and if any
reclassification also results in a change in shares of Common Stock covered by
Sections 4.1 or 4.2, then such adjustment shall be made pursuant to Sections
4.1, 4.2, 4.3 and this Section 4.5. The provisions of this Section 4 shall
similarly apply to successive reclassifications, reorganizations, mergers or
consolidations, sales or other transfers.

     

    4.6           Notices of Changes in
Warrant. Upon every adjustment of the Warrant Price or the number of
shares issuable upon exercise of a Warrant, the Company shall give written
notice thereof to the Warrant Agent, which notice shall state the Warrant Price
resulting from such adjustment and the increase or decrease, if any, in the
number of shares purchasable at such price upon the exercise of a Warrant,
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based. Upon the occurrence of any event specified in
Sections 4.1, 4.2, 4.3, 4.4 or 4.5 the Company shall give written notice to each
Warrant holder, at the last address set forth for such holder in the Warrant
Register, of the record date or the effective date of the event. Failure to give
such notice, or any defect therein, shall not affect the legality or validity of
such event.

     

    4.7           No Fractional Shares.
Notwithstanding any provision contained in this Warrant Agreement to the
contrary, the Company shall not issue fractional shares upon exercise of
Warrants. If, by reason of any adjustment made pursuant to this Section 4, the
holder of any Warrant would be entitled, upon the
exercise of such Warrant, to receive a fractional interest in a share, the
Company shall, upon such exercise, round up to the nearest whole number the
number of the shares of Common Stock to be issued to the Warrant
holder.

     

    4.8           Form of Warrant. The
form of Warrant need not be changed because of any adjustment pursuant to this
Section 4, and Warrants issued after such adjustment may state the same Warrant
Price and the same number of shares as is stated in the Warrants initially
issued pursuant to this Agreement. However, the Company may, at any time, in its
sole discretion, make any change in the form of Warrant that the Company may
deem appropriate and that does not affect the substance thereof, and any Warrant
thereafter issued or countersigned, whether in exchange or substitution for an
outstanding Warrant or otherwise, may be in the form as so changed.

     

    
      
        
        

      

      
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    4.9           Notice of Certain
Transactions.  In the event that the Company shall propose to
(a) offer the holders of its Common Stock rights to subscribe for or to purchase
any securities convertible into shares of Common Stock or shares of stock of any
class or any other securities, rights or options, (b) issue any rights, options
or warrants entitling the holders of Common Stock to subscribe for shares of
Common Stock or (c) make a tender offer, redemption offer or exchange offer with
respect to the Common Stock, the Company shall send to the Warrant holders a
notice of such proposed action or offer. Such notice shall be mailed to the
registered holders at their addresses as they appear in the Warrant Register,
which shall specify the record date for the purposes of such dividend,
distribution or rights, or the date such issuance or event is to take place and
the date of participation therein by the holders of Common Stock, if any such
date is to be fixed, and shall briefly indicate the effect of such action on the
Common Stock and on the number and kind of any other shares of stock and on
other property, if any, and the number of shares of Common Stock and other
property, if any, issuable upon exercise of each Warrant and the Warrant Price
after giving effect to any adjustment pursuant to this Article 4 which would be
required as a result of such action. Such notice shall be given as promptly as
practicable after the Board has determined to take any such action and (x) in
the case of any action covered by clause (a) or (b) above at least 10 days prior
to the record date for determining the holders of the Common Stock for purposes
of such action or (y) in the case of any other such action at least 20 days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of Common Stock, whichever shall be the
earlier.

     

    4.10           Other
Events.  If any event occurs as to which the foregoing
provisions of this Article 4 are not strictly applicable or, if strictly
applicable, would not, in the good faith judgment of the Board, fairly and
adequately protect the purchase rights of the registered holders of the Warrants
in accordance with the essential intent and principles of such provisions, then
the Board shall make such adjustments in the application of such provisions, in
accordance with such essential intent and principles, as shall be reasonably
necessary, in the good faith opinion of the Board, to protect such purchase
rights as aforesaid.

     

    5.   
         Transfer and Exchange of
Warrants.

     

    5.1           Registration of
Transfer. The Warrant Agent shall register the transfer, from time to
time, of any outstanding Warrant into the Warrant Register, upon surrender of
such Warrant for transfer, properly endorsed with signatures properly guaranteed
and accompanied by appropriate instructions for transfer. Upon any such
transfer, a new Warrant representing an equal aggregate number of Warrants shall
be issued and the old Warrant shall be cancelled by the Warrant Agent. The
Warrants so cancelled shall be delivered by the Warrant Agent to the Company
from time to time upon the Company’s request.

     

    5.2           Procedure for Surrender of
Warrants. Warrants may be surrendered to the Warrant Agent, together with
a written request for exchange or transfer, and, thereupon, the Warrant Agent
shall issue in exchange therefor one or more new Warrants as requested by the
Registered Holder of the Warrants so surrendered, representing an equal
aggregate number of Warrants; provided, however, that, in the event a Warrant
surrendered for transfer bears a restrictive legend, the Warrant Agent shall not
cancel such Warrant and shall issue new Warrants in exchange therefor until the
Warrant Agent has received an opinion of counsel for the Company stating that
such transfer may be made and indicating whether the new Warrants must also bear
a restrictive legend.

     

    
      
        
        

      

      
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    5.3           Fractional Warrants.
The Warrant Agent shall not be required to effect any registration of transfer
or exchange which will result in the issuance of a warrant certificate for a
fraction of a warrant.

     

    5.4           Service Charges. No
service charge shall be made for any exchange or registration of transfer of
Warrants.

     

    5.5           Warrant Execution and
Countersignature. The Warrant Agent is hereby authorized to countersign
and to deliver, in accordance with the terms of this Agreement, the Warrants
required to be issued pursuant to the provisions of this Section 5, and the
Company, whenever required by the Warrant Agent, will supply the Warrant Agent
with Warrants duly executed on behalf of the Company for such
purpose.

     

    6.         
  Redemption.

     

    6.1           Redemption. Subject
to the penultimate and final sentences of this Section 6.1, not less than all of
the outstanding Warrants may be redeemed, at the option of the Company, at any
time after they become exercisable and there is an effective Registration
Statement covering the shares of Common Stock issuable upon exercise of the
Warrants current and available and prior to their expiration, at the office of
the Warrant Agent, upon the notice referred to in Section 6.2, in whole but not
in part, at the price of $.01 per Warrant (“Redemption Price”), provided
that the last sales price of the Common Stock has been equal to or greater than
$3.00 per share for any twenty (20) trading days within a thirty (30)
consecutive trading day period ending on the third business day prior to the
date on which notice of redemption is given.  Notwithstanding anything
to the contrary contained herein, the Company shall not call the Warrants for
redemption unless there is an effective registration statement under the Act
relating to the shares of Common Stock issuable upon exercise of the Warrants
current and available throughout the “30-day redemption period” and a prospectus
is available.

     

    6.2           Date Fixed for, and Notice
of, Redemption. In the event the Company shall elect to redeem all of the
Warrants, the Company shall fix a date for the redemption. Notice of redemption
shall be mailed by first class mail, postage prepaid, by the Company not less
than 30 days prior to the date fixed for redemption to the Registered Holders of
the Warrants to be redeemed at their last addresses as they shall appear on the
Warrant Register. Any notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Registered
Holder received such notice.

     

    
      
        
        

      

      
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    6.3           Exercise After Notice of
Redemption. The Warrants may be exercised in accordance with Section 3 of
this Warrant Agreement at any time after notice of redemption shall have been
given by the Company pursuant to Section 6.2 hereof and prior to the time and
date fixed for redemption. On and after the redemption date, the record holder
of the Warrants shall have no further rights except to receive, upon surrender
of the Warrants, the Redemption Price.

     

    7.      
     Other Provisions Relating to
Rights of Holders of Warrants.

     

    7.1           No Rights as
Stockholder. A Warrant does not entitle the Registered Holder thereof to
any of the rights of a stockholder of the Company, including, without
limitation, the right to receive dividends, or other distributions, exercise any
preemptive rights to vote or to consent or to receive notice as stockholders in
respect of the meetings of stockholders or the election of directors of the
Company or any other matter.

     

    7.2           Lost, Stolen Mutilated or
Destroyed Warrants. If any Warrant is lost, stolen, mutilated or
destroyed, the Company and the Warrant Agent may, on such terms as to indemnity
or otherwise as they may in their discretion impose (which terms shall, in the
case of a mutilated Warrant, include the surrender thereof), issue a new Warrant
of like denomination, tenor and date as the Warrant so lost, stolen, mutilated
or destroyed. Any such new Warrant shall constitute a substitute contractual
obligation of the Company, whether or not the allegedly lost, stolen, mutilated
or destroyed Warrant shall be at any time enforceable by anyone.

     

    7.3           Reservation of Common
Stock. The Company shall at all times reserve and keep available a number
of its authorized but unissued shares of Common Stock that will be sufficient to
permit the exercise in full of all outstanding Warrants issued pursuant to this
Warrant Agreement.

     

    7.4           Registration of Common
Stock. The Company will use its best efforts to maintain the
effectiveness of the Registration Statement, including by the filing of any
required post-effective amendments to such Registration Statement, and ensure
that a prospectus is available for delivery to the Warrant holders until the
expiration of the Warrants in accordance with the provisions of this Warrant
Agreement.  The Warrants shall not be exercisable and the Company
shall not be obligated to issue Common Stock unless, at the time a holder seeks
to exercise Warrants, a prospectus related to the Common Stock issuable upon
exercise of the Warrants is current and the Common Stock has been registered or
qualified or deemed to be exempt under the laws of the state of residence of the
holder of the Warrants.  In addition, the Company agrees to use its
best efforts to register such securities under the blue sky laws of the states
of residence of exercising warrant holders, if permitted by the blue sky laws of
such jurisdictions, in the event that an exemption is not
available.  The provisions of this Section 7.4 may not be modified,
amended or deleted without the prior written consent of Maxim Group
LLC.

     

    
      
        
        

      

      
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    8.       
    Concerning the Warrant Agent
and Other Matters.

     

    8.1           Payment of Taxes. The
Company will, from time to time, promptly pay all taxes and charges that may be
imposed upon the Company or the Warrant Agent in respect of the issuance or
delivery of shares of Common Stock upon the exercise of Warrants, but the
Company shall not be obligated to pay any transfer taxes in respect of the
Warrants or such shares.

     

    8.2           Resignation, Consolidation,
or Merger of Warrant Agent.

     

    8.2.1           Appointment of Successor
Warrant Agent. The Warrant Agent, or any successor to it hereafter
appointed, may resign its duties and be discharged from all further duties and
liabilities hereunder after giving sixty (60) days’ notice in writing to the
Company. If the office of the Warrant Agent becomes vacant by resignation or
incapacity to act or otherwise, the Company shall appoint, in writing, a
successor Warrant Agent in place of the Warrant Agent. If the Company shall fail
to make such appointment within a period of 30 days after it has been notified
in writing of such resignation or incapacity by the Warrant Agent or by the
holder of the Warrant (who shall, with such notice, submit his, her or its
Warrant for inspection by the Company), then the holder of any Warrant may apply
to the Supreme Court of the State of New York for the County of New York for the
appointment of a successor Warrant Agent. Any successor Warrant Agent, whether
appointed by the Company or by such court, shall be a corporation organized and
existing under the laws of the State of New York, in good standing and have its
principal office in the Borough of Manhattan, City and State of New York, and be
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by federal or state authorities. After appointment,
any successor Warrant Agent shall be vested with all the authority, powers,
rights, immunities, duties and obligations of its predecessor Warrant Agent with
like effect as if originally named as Warrant Agent hereunder, without any
further act or deed; but, if for any reason it becomes necessary or appropriate,
the predecessor Warrant Agent shall execute and deliver, at the expense of the
Company, an instrument transferring to such successor Warrant Agent all the
authority, powers, and rights of such predecessor Warrant Agent hereunder; and,
upon request of any successor Warrant Agent, the Company shall make, execute,
acknowledge, and deliver any and all instruments in writing for more fully and
effectually vesting in and confirming to such successor Warrant Agent all such
authority, powers, rights, immunities, duties and obligations.

     

    8.2.2           Notice of Successor Warrant
Agent. In the event a successor Warrant Agent shall be appointed, the
Company shall give notice thereof to the predecessor Warrant Agent and the
transfer agent for the Common Stock not later than the effective date of any
such appointment.

     

    8.2.3           Merger or Consolidation of
Warrant Agent. Any corporation into which the Warrant Agent may be merged
or with which it may be consolidated or any corporation resulting from any
merger or consolidation to which the Warrant Agent shall be a party shall be the
successor Warrant Agent under this Warrant Agreement without any further act on
the part of the Company or the Warrant Agent.

     

    
      
        
        

      

      
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    8.3          Fees and Expenses of Warrant
Agent.

     

    8.3.1           Remuneration. The
Company agrees to pay the Warrant Agent reasonable remuneration for its services
as Warrant Agent
hereunder as set forth on Exhibit B hereto and
will reimburse the Warrant Agent upon demand for all expenditures that the
Warrant Agent may reasonably incur in the execution of its duties
hereunder.

     

    8.3.2           Further Assurances.
The Company agrees to perform, execute, acknowledge and deliver, or cause to be
performed, executed, acknowledged and delivered, all such further and other
acts, instruments and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing of the provisions of this Warrant
Agreement.

     

    8.4          Liability of Warrant
Agent.

     

    8.4.1           Reliance on Company
Statement. Whenever, in the performance of its duties under this Warrant
Agreement, the Warrant Agent shall deem it necessary or desirable that any fact
or matter be proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a statement signed by the Chief Executive Officer,
Chief Financial Officer or Chairman of the Board of the Company and delivered to
the Warrant Agent. The Warrant Agent may rely upon such statement for any action
taken or suffered in good faith by it pursuant to the provisions of this Warrant
Agreement.

     

    8.4.2           Indemnity. The
Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and
save it harmless against any and all liabilities, including judgments, costs and
reasonable counsel fees, for anything done or omitted by the Warrant Agent in
the execution of this Warrant Agreement, except as a result of the Warrant
Agent’s negligence, willful misconduct or bad faith.

     

    8.4.3           Exclusions. The
Warrant Agent shall have no responsibility with respect to the validity of this
Warrant Agreement or with respect to the validity or execution of any Warrant
(except its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Warrant
Agreement or in any Warrant; nor shall it be responsible to make any adjustments
required under the provisions of Section 4 hereof or responsible for the manner,
method or amount of any such adjustment or the ascertaining of the existence of
facts that would require any such adjustment; nor shall it, by any act
hereunder, be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock to be issued pursuant
to this Warrant Agreement or any Warrant or as to whether any shares of Common
Stock will when issued be valid and fully paid and nonassessable.

     

    8.5           Acceptance of Agency.
The Warrant Agent hereby accepts the agency established by this Warrant
Agreement and agrees to perform the same upon the terms and conditions herein
set forth and, among other things, shall account promptly to the Company with
respect to Warrants exercised and concurrently account for, and pay to the
Company, all moneys received by the Warrant Agent for the purchase of shares of
the Company’s Common Stock through the exercise of Warrants.

     

    
      
        
        

      

      
        - 10
-

        
          

        

      

      
        
        

      

    

     

    9.        
   Miscellaneous
Provisions.

     

    9.1           Successors. All the
covenants and provisions of this Warrant Agreement by or for the benefit of the
Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns.

     

    9.2           Notices. Any notice,
statement or demand authorized by this Warrant Agreement to be given or made by
the Warrant Agent or by the holder of any Warrant to or on the Company shall be
delivered by hand or sent by registered or certified mail or overnight courier
service, addressed (until another address is filed in writing by the Company
with the Warrant Agent) as follows:

    


    Nile
Therapeutics, Inc.

    4 West
4th Avenue, Suite 400

    San
Mateo, CA 94402

    Attn:
Chief Executive Officer

     

    Any
notice, statement or demand authorized by this Warrant Agreement to be given or
made by the holder of any Warrant or by the Company to or on the Warrant Agent
shall be delivered by hand or sent by registered or certified mail or overnight
courier service, addressed (until another address is filed in writing by the
Warrant Agent with the Company), as follows:

    


    American
Stock Transfer & Trust Company, LLC

    6201 15th
Avenue

    Brooklyn,
NY 11219

    Attn:
Devonna Mosley

    


     with
a copy in each case to (which shall not constitute notice):

    


    Fredrikson
& Byron, P.A.

    200 South
6th Street, Suite 4000

    Minneapolis,
MN 55402-1425

    Attn:
Christopher J. Melsha, Esq.

     

    Maxim
Group LLC

    405
Lexington Avenue

    New York,
NY 10174

    Attn:
Clifford A. Teller

     

    Any
notice, sent pursuant to this Warrant Agreement shall be effective, if delivered
by hand, upon receipt thereof by the party to whom it is addressed, if sent by
overnight courier, on the next business day of the delivery to the courier, and
if sent by registered or certified mail on the third day after registration or
certification thereof.

     

    
      
        
        

      

      
        - 11
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    9.3           Applicable Law. The
validity, interpretation, and performance of this Warrant Agreement and of the
Warrants shall be governed in all respects by the laws of the State of New York,
without giving effect to conflict of laws. The Company hereby agrees that any
action, proceeding or claim against it arising out of or relating in any way to
this Warrant Agreement shall be brought and enforced in the courts of the State
of New York or the United States District Court for the Southern District of New
York, and irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenient forum. Any such
process or summons to be served upon the Company may be served by transmitting a
copy thereof by registered or certified mail, return receipt requested, postage
prepaid, addressed to it at the address set forth in Section 9.2 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon the
Company in any action, proceeding or claim.

     

    9.4           Persons Having Rights under
this Warrant Agreement. Nothing in this Warrant Agreement expressed and
nothing that may be implied from any of the provisions hereof is intended, or
shall be construed, to confer upon, or give to, any person or corporation other
than the parties hereto and the Registered Holders of the Warrants and, for the
purposes of Sections 7.4, 9.2 and 9.8 hereof, the underwriters in the public
offering, any right, remedy, or claim under or by reason of this Warrant
Agreement or of any covenant, condition, stipulation, promise, or agreement
hereof. Each underwriter in the public offering shall be deemed to be a
third-party beneficiary of this Agreement with respect to Sections 7.4, 9.2 and
9.8 hereof. All covenants, conditions, stipulations, promises, and agreements
contained in this Agreement shall be for the sole and exclusive benefit of the
parties hereto (and the underwriters in the public offering with respect to the
Sections 7.4, 9.2 and 9.8 hereof) and their successors and assigns and of the
Registered Holders of the Warrants.

     

    9.5           Examination of the Warrant
Agreement. A copy of this Warrant Agreement shall be available at all
reasonable times at the office of the Warrant Agent for inspection by the
Registered Holder of any Warrant. The Warrant Agent may require any such holder
to submit his, her or its Warrant for inspection.

     

    9.6           Counterparts- Facsimile
Signatures. This Warrant Agreement may be executed in any number of
counterparts, and each of such counterparts shall, for all purposes, be deemed
to be an original, and all such counterparts shall together constitute one and
the same instrument. Facsimile signatures shall constitute original signatures
for all purposes of this Warrant Agreement.

    


    9.7           Effect of Headings.
The section headings herein are for convenience only and are not part of this
Warrant Agreement and shall not affect the interpretation thereof.

     

    
      
        
        

      

      
        - 12
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    9.8           Amendments.

     

    9.8.1           This
Agreement and any Warrant certificate may be amended by the parties hereto by
executing a supplemental warrant agreement (a “Supplemental Agreement”),
without the consent of any of the Warrant holders, for the purpose of (i) curing
any ambiguity, or curing, correcting or supplementing any defective provision
contained herein, or making any other provisions with respect to matters or
questions arising under this agreement that is not inconsistent with the
provisions of this agreement or the Warrant certificates, (ii) evidencing the
succession of another corporation to the Company and the assumption by any such
successor of the covenants of the Company contained in this agreement and the
Warrants, (iii) evidencing and providing for the acceptance of appointment by a
successor Warrant Agent with respect to the Warrants, (iv) adding to the
covenants of the Company for the benefit of the Holders or surrendering any
right or power conferred upon the Company under this Agreement, or (viii)
amending this agreement and the Warrants in any manner that the Company may deem
to be necessary or desirable and that will not adversely affect the interests of
the Warrant holders in any material respect.

    


    9.8.2           The
Company and the Warrant Agent may amend this Warrant Agreement and the Warrants
by executing a Supplemental Agreement with the consent of the Holders of not
fewer than a majority of the unexercised Warrants affected by such amendment,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders under this Warrant Agreement; provided,
however, that, without the consent of each of the Warrant holders affected
thereby, no such amendment may be made that (i) changes the Warrants so as to
reduce the number of shares purchasable upon exercise of the Warrants or so as
to increase the Warrant Price (other than as provided by Section 4),
(ii) shortens the period of time during which the Warrants may be exercised,
(iii) otherwise adversely affects the exercise rights of the Holders in any
material respect, or (iv) reduces the number of unexercised Warrants the holders
of which must consent for amendment of this agreement or the Warrants.
Notwithstanding anything contained herein to the contrary, Section 9 may be
amended only by the parties hereto with the consent of Maxim Group
LLC.

     

    9.8.3           The
parties hereto acknowledge that each underwriters in the public offering shall
be an intended third party beneficiary of this Section 9.8.

     

    9.9           Severability. This
Warrant Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of this Warrant Agreement or of any other term or provision
hereof. Furthermore, in lieu of any such invalid or unenforceable term or
provision, the parties hereto intend that there shall be added as a part of this
Warrant Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and
enforceable.

     

    
      
        
        

      

      
        - 13
-

        
          

        

      

      
        
        

      

    

     

    IN
WITNESS WHEREOF, this Warrant Agreement has been duly executed by the parties
hereto as of the day and year first above written.

     

    
      
        	 	
                NILE
      THERAPEUTICS, INC.

              	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Joshua
      Kazam	 
	 	 	
                Name:
      Joshua Kazam

              	 
	 	 	
                Title:
      President and Chief Executive Officer

              	 
	 	 	 	 


      

    

     

    
      
        	 	
                AMERICAN
      STOCK TRANSFER &

                
                  TRUST
      COMPANY, LLC

                

              	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Herbert
      J. Lemmer	 
	 	 	
                Name:
      Herbert J. Lemmer

              	 
	 	 	
                Title:
      Vice President

              	 
	 	 	 	 


      

    

     

    
      
        
        

      

      
        - 14
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    EXHIBIT
A

     

    Form of
Warrant

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

     

    
      
        
          	
                  WARRANT
      NO.

                	 	
                   WARRANTS

                
	 	 	 
	
                  ________

                	
                  THIS
      WARRANT WILL BE VOID IF NOT EXERCISED PRIOR

                  TO
      5:00 P.M. NEW YORK CITY TIME, APRIL 21, 2015

                   

                	
                  _________

                


        

      

    

    NILE
THERAPEUTICS, INC.

    


    CUSIP
654145 119

     

    WARRANT

    


    THIS
CERTIFIES THAT, for value received

    


    is the
registered holder of a Warrant or Warrants expiring April 21, 2015 (the
“Warrant”) to purchase one fully paid and non-assessable share of Common Stock,
par value $.001 per share (“Shares”), of Nile Therapeutics, Inc., a
Delaware corporation (the “Company”), for each Warrant evidenced by this Warrant
Certificate.  The Warrant entitles the holder thereof to purchase from
the Company such number of Shares of the Company at the price of $0.94 per
share, upon surrender of this Warrant Certificate and payment of the Warrant
Price (as defined below) at the office or agency of the Warrant Agent, American
Stock Transfer & Trust Company, LLC (such payment to be made by certified
check made payable to the Company or by wire transfer of immediately available
funds to an account designated by the Company), subject to the conditions set
forth herein and in the Warrant Agreement between the Company and the warrant
agent named therein (the “Warrant Agreement”).  Notwithstanding
anything else in this Warrant Certificate, or the Warrant Agreement, no Warrant
may be exercised unless at the time of exercise (i) a registration statement
covering the Warrant Shares to be issued upon exercise is effective under the
Act and (ii) a prospectus thereunder relating to the Warrant Shares is
current.  In no event shall the registered holder of this Warrant be
entitled to receive a net-cash settlement, shares of common stock or other
consideration in lieu of physical settlement in Shares of the
Company.  The Warrant Agreement provides that upon the occurrence of
certain events the Warrant Price and the number of Shares purchasable hereunder,
set forth on the face hereof, may, subject to certain conditions, be
adjusted.   The term Warrant Price as used in this Warrant
Certificate refers to the price per Share at which Shares may be purchased at
the time the Warrant is exercised.

    


    This
Warrant will expire on the date first above written if it is not exercised prior
to such date by the registered holder pursuant to the terms of the Warrant
Agreement or if it is not redeemed by the Company prior to such
date.

    


    No
fraction of a Share will be issued upon any exercise of a Warrant.  If
the holder of a Warrant would be entitled to receive a fraction of a Share upon
any exercise of a Warrant, the Company shall, upon such exercise, round up to
the nearest whole number the number of Shares to be issued to such
holder.

    


    Upon any
exercise of the Warrant for less than the total number of full Shares provided
for herein, there shall be issued to the registered holder hereof or his
assignee a new Warrant Certificate covering the number of Shares for which the
Warrant has not been exercised.

    


    Warrant
Certificates, when surrendered at the office or agency of the Warrant Agent by
the registered holder hereof in person or by attorney duly authorized in
writing, may be exchanged in the manner and subject to the limitations provided
in the Warrant Agreement, but without payment of any service charge, for another
Warrant Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants.

    


    Upon due
presentment for registration of transfer of the Warrant Certificate at the
office or agency of the Warrant Agent, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any applicable tax or other governmental
charge.

    


    The
Company and the Warrant Agent may deem and treat the registered holder as the
absolute owner of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the registered holder, and for all other
purposes, and neither the Company nor the Warrant Agent shall be affected by any
notice to the contrary.

     

    
      
        
        

      

      
        A-1

        
          

        

      

      
        
        

      

    

    
 

    This
Warrant does not entitle the registered holder to any of the rights of a
stockholder of the Company.

    


    The
Company reserves the right to redeem the Warrant prior to its exercise, with a
notice of redemption in writing to the holder of record of the Warrant, giving
30 days’ notice of such redemption at any time while the Warrant is exercisable
if the last sale price of the Shares has been at least $3.00 per share on each
of 20 trading days within a 30 trading day period ending on the third business
day prior to the date on which notice of such redemption is given. The
redemption price of the Warrants is to be $0.01 per Warrant. Any Warrant either
not exercised or tendered back to the Company by the end of the date specified
in the notice of redemption shall be canceled on the books of the Company and
have no further value except for the $0.01 redemption price.

    


    
      
        
          
            
              
                
                  
                    	
                            NILE THERAPEUTICS,
      INC.

                          	 	 
	 	 	 
	
                            By:

                          	 	 
	 	 	 
	
                            President

                          	 	
                            Secretary

                          
	 	 	 
	 	 	 
	 	 	 
	
                            COUNTERSIGNED:

                          	 	 
	 	 	 
	
                            AMERICAN
      STOCK TRANSFER & TRUST COMPANY, LLC

                            (New York, NY)

                            AS
      WARRANT AGENT

                          	 	 
	
                             

                            By:

                             

                          	 	 
	
                            Authorized
      Signature

                          	 	 


                  

                

              

            

          

        

      

    

    


    
      
        
        

      

      
        A-2

        
          

        

      

      
        
        

      

    

     

    SUBSCRIPTION
FORM

    To Be
Executed by the Registered Holder in Order to Exercise Warrants

    


    The
undersigned Registered Holder irrevocably elects to exercise
______________ Warrants represented by this Warrant Certificate, and to
purchase the shares of Common Stock issuable upon the exercise of such Warrants,
and requests that Certificates for such shares shall be issued in the name
of

     

    
      	 
      
	
              (PLEASE
      TYPE OR PRINT NAME AND ADDRESS)

               

            
	
                

               

            
	
               

                

            


    

     (SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)

     

    and be
delivered to
_________________________________________________________________________________________

    (PLEASE
PRINT OR TYPE NAME AND ADDRESS)

     

    ____________________________________________________________________________________________

    and, if
such number of Warrants shall not be all the Warrants evidenced by this Warrant
Certificate, that a new Warrant Certificate for the balance of such Warrants be
registered in the name of, and delivered to, the Registered Holder at the
address stated below:

    


    
      	
              Dated:
      _____________________

            	
              ___________________________________________

            
	 
      	
              (SIGNATURE)

            
	 
      	
              ___________________________________________

            
	 
      	
              (ADDRESS)

            
	 
      	
              ___________________________________________

            
	 
      	 
      
	 
      	
              ___________________________________________

            
	 
      	
              (TAX
      IDENTIFICATION NUMBER)

            


    

    


    


    Signature
Guaranteed: ______________________________

    


    THE
SIGNATURE TO THE SUBSCRIPTION FORM MUST CORRESPOND TO THE NAME WRITTEN UPON THE
FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A COMMERCIAL
BANK OR TRUST COMPANY OR A MEMBER FIRM OF THE AMERICAN STOCK EXCHANGE,
NEW YORK STOCK EXCHANGE, PACIFIC STOCK EXCHANGE OR CHICAGO STOCK
EXCHANGE.

     

    
      
        
        

      

      
        A-3

        
          

        

      

      
        
        

      

    

    
 

    ASSIGNMENT

    To Be
Executed by the Registered Holder in Order to Assign Warrants

    


    For Value
Received, _______________________ hereby sell, assign, and transfer
unto

     

    
      	 
      
	
              (PLEASE
      TYPE OR PRINT NAME AND ADDRESS)

               

            
	 
      
	 
      


    

     (SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)

     

    and be
delivered to
_____________________________________________________________________________________________

    (PLEASE
PRINT OR TYPE NAME AND ADDRESS)

    


    ______________________
of the Warrants represented by this Warrant Certificate, and hereby irrevocably
constitute and appoint _________________________________ Attorney to transfer
this Warrant Certificate on the books of the Company, with full power of
substitution in the premises.

    


    


    
      	
              Dated:
      _________________________

            	
              _________________________________

            
	 
      	
              (SIGNATURE)

            


    

    


    


    Signature
Guaranteed: ______________________________

    


    THE
SIGNATURE TO THE ASSIGNMENT OF THE SUBSCRIPTION FORM MUST CORRESPOND TO THE NAME
WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A
COMMERCIAL BANK OR TRUST COMPANY OR A MEMBER FIRM OF THE AMERICAN STOCK
EXCHANGE, NEW YORK STOCK EXCHANGE, PACIFIC STOCK EXCHANGE OR CHICAGO STOCK
EXCHANGE.

    


     

    
      
        
        

      

      
        A-4