Exhibit 10.1








 





Nile Therapeutics, Inc.

4 West 4th Avenue, Suite 400


San Mateo, California 94402


 


Gentlemen:


 


The undersigned (the “Investor”)
hereby confirms its agreement with Nile Therapeutics, Inc., a Delaware corporation (the “Company”) as follows:


 


1.     This
Subscription Agreement, including the Terms and Conditions For Purchase of Securities attached hereto as Annex I (collectively,
(this “Agreement”) is made as of the date set forth below between the Company and the Investor.


 


2.     The
Company has authorized the sale and issuance to certain investors of up to an aggregate of (i) 3,350,000 shares (the “Shares”)
of its common stock, par value $0.001 per share (the “Common Stock”) and (ii) warrants (each, a “Warrant”
and, collectively, the “Warrants”) to purchase up to an aggregate of 2,512,500 shares of Common Stock (the “Warrant
Shares”), in substantially the form attached hereto as Exhibit B. Each Investor will receive 0.75 of a Warrant
to purchase one Warrant Share for each Share purchased by the Investor at an aggregate initial public offering price of $0.40.
(the “Purchase Price”). The Shares, the Warrants and the Warrant Shares are collectively referred to
herein as the “Securities”.


 


3.     The
offering and sale of the Securities (the “Offering”) are being made pursuant to (1) an effective Registration
Statement on Form S-3, File No. 333-165167 (the “Registration Statement”) filed by the Company with the Securities
and Exchange Commission (the “Commission”) (including the prospectus contained therein (the “Base Prospectus”),
(2) if applicable, certain “free writing prospectuses” (as that term is defined in Rule 405 under the Securities
Act of 1933, as amended (the “Securities Act”)), that have been or will be filed with the Commission and delivered
to the Investor on or prior to the date hereof (the “Issuer Free Writing Prospectus”), containing certain supplemental
information regarding the Securities, the terms of the Offering and the Company and (3) a Prospectus Supplement (the “Prospectus
Supplement” and together with the Base Prospectus, the “Prospectus”) containing certain supplemental
information regarding the Securities and terms of the Offering that has been or will be filed with the Commission and delivered to
the Investor (or made available to the Investor by the filing by the Company of an electronic version thereof with the Commission).


 


4.     The
Company and the Investor agree that the Investor will purchase from the Company and the Company will issue and sell to the Investor
the Shares and the Warrants set forth below for the aggregate Purchase Price set forth below. The Shares and the Warrants shall
be purchased pursuant to the Terms and Conditions for Purchase of Securities attached hereto as Annex I and incorporated
herein by this reference as if fully set forth herein. The Investor acknowledges that the Offering is not being underwritten
by the placement agent (the “Placement Agent”) named in the Prospectus Supplement and that there is no
minimum offering amount.


 


5.     The
manner of settlement of the Shares purchased by the Investor shall be determined by such Investor as follows (check one):


 



    	 



    	 



    

 


		[         ] 	A.[____]A.Delivery
by crediting the account of the Investor's prime broker (as specified by such Investor on Exhibit A annexed hereto) with the Depository
Trust Company (“DTC”) through its Deposit/Withdrawal At Custodian (“DWAC”) system, whereby
Investor's prime broker shall initiate a DWAC transaction on the Closing Date using its DTC participant identification number,
and released by American Stock Transfer & Trust Company, LLC, the Company’s transfer agent (the “Transfer Agent”),
at the Company's direction. NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE
COMPANY, THE INVESTOR SHALL:



 


		(I)	DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED
WITH THE SHARES ARE MAINTAINED TO SET UP A DWAC INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES,
AND



 


		(II)	REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE
PURCHASE PRICE FOR THE SHARES AND THE WARRANTS BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING ACCOUNT:



 


[To be separately provided to the Investor]


 


—OR—


 


		[         ] 	B.[____]B.Delivery
versus payment (“DVP”) through DTC (i.e., on the Closing Date, the Company shall issue Shares registered
in the Investor’s name and address as set forth below and released by the Transfer Agent directly to the account(s) at Roth
Capital Partners, LLC (“Roth”) identified by the Investor; upon receipt of such Shares, Roth shall promptly
electronically deliver such Shares to the Investor, and simultaneously therewith payment shall be made by Roth by wire transfer
to the Company). NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY,
THE INVESTOR SHALL:



 


		(I)	NOTIFY ROTH OF THE ACCOUNT OR ACCOUNTS AT ROTH TO BE CREDITED WITH
THE SHARES BEING PURCHASED BY SUCH INVESTOR, AND



 


		(II)	CONFIRM THAT THE ACCOUNT OR ACCOUNTS AT ROTH TO BE CREDITED WITH
THE SHARES BEING PURCHASED BY THE INVESTOR HAVE A MINIMUM BALANCE EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SHARES AND WARRANTS
BEING PURCHASED BY THE INVESTOR.



 



    	 



    	 



    

 


IT IS THE INVESTOR’S RESPONSIBILITY
TO (A) MAKE THE NECESSARY WIRE TRANSFER OR CONFIRM THE PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT
BY WAY OF DWAC OR DVP IN A TIMELY MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE SHARES AND THE
WARRANTS OR DOES NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES AND THE WARRANTS MAY NOT BE DELIVERED
AT CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING ALTOGETHER.


 


6.     The
executed Warrants shall be delivered to the Investor by mail, registered in such names and sent to such address as specified by
the Investor below.


 


7.     The
Investor represents that, except as set forth below, (a) it has had no position, office or other material relationship within the
past three years with the Company or persons known to it to be affiliates of the Company, (b) it is not a member of the Financial
Industry Regulatory Authority, Inc. (“FINRA”) or an Associated Person (as such term is defined under the FINRA’s
NASD Membership and Registration Rules Section 1011) as of the Closing, and (c) neither the Investor nor any group of Investors
(as identified in a public filing made with the Commission) of which the Investor is a part in connection with the Offering, acquired,
or obtained the right to acquire, 20% or more of the Common Stock (or securities convertible into or exercisable for Common Stock)
or the voting power of the Company on a post-transaction basis. Exceptions: 


 


____________________________________________________________________


 


(If no exceptions,
write “none.” If left blank, response will be deemed to be “none.”)


 


8.     The
Investor represents that it has received (or otherwise had made available to it by the filing by the Company of an electronic version
thereof with the Commission) the Base Prospectus, dated March 12, 2010, which is a part of the Company’s Registration Statement,
the documents incorporated by reference therein and any free writing prospectus (collectively, the “Disclosure Package”),
prior to or in connection with the receipt of this Agreement. The Investor acknowledges that, prior to the delivery of this
Agreement to the Company, the Investor will receive certain additional information regarding the Offering, including pricing information
(the “Offering Information”). Such information may be provided to the Investor by any means permitted
under the Securities Act, including the Prospectus Supplement, a free writing prospectus and oral communications.


 


9.     No
offer by the Investor to buy Shares and Warrants will be accepted and no part of the Purchase Price will be delivered to the Company
until the Investor has received the Offering Information and the Company has accepted such offer by countersigning a copy of this
Agreement, and any such offer may be withdrawn or revoked, without obligation or commitment of any kind, at any time prior to the
Company (or Roth on behalf of the Company) sending (orally, in writing or by electronic mail) notice of its acceptance of such
offer. An indication of interest will involve no obligation or commitment of any kind until the Investor has been delivered
the Offering Information and this Agreement is accepted and countersigned by or on behalf of the Company.


 



    	 



    	 



    

 


10.     The
Company acknowledges that the only material, non-public information relating to the Company or its subsidiaries that the Company,
its employees or agents has provided to the Investor in connection with the Offering prior to the date hereof is the existence
of the Offering.


 



    	 



    	 



    

 


Number of Shares:
                                              


 


Purchase Price per Share:       $                                       


 


Aggregate Purchase Price: $                                            


 


Number of Warrant Shares subject to Warrants (Equal to Number
of Shares multiplied by 0.75 and rounded down to the nearest whole number):                                    


 


Please confirm that the foregoing correctly
sets forth the agreement between us by signing in the space provided below for that purpose.


 


	 	Dated as of:  March 30, 2012
	 	 
	 	 
	 	INVESTOR
	 	 
	 	By:	 
	 	Print Name:	 
	 	Title:	 
	 	Address:	 
	 	 	 


  


Agreed and Accepted

this 30th day of March, 2012:


 


NILE THERAPEUTICS, INC.


 


	By:	 	 
	 	Title:	 


  



    	 



    	 



    

 


annex
I






 


TERMS AND CONDITIONS FOR PURCHASE OF SECURITIES


 


1.     Authorization
and Sale of the Securities. Subject to the terms and conditions of this Agreement, the Company has authorized the sale of the
Securities.


 


2.     Agreement
to Sell and Purchase the Securities; Placement Agent.


 


2.1     At
the Closing (as defined in Section 3.1), the Company will sell to the Investor, and the Investor will purchase from the
Company, upon the terms and conditions set forth herein, the number of Shares and Warrants set forth on the last page of the
Agreement to which these Terms and Conditions for Purchase of Securities are attached as Annex I (the “Signature
Page”) for the aggregate purchase price therefor set forth on the Signature Page.


 


2.2     The
Company proposes to enter into substantially this same form of Subscription Agreement with certain other investors (the “Other
Investors”) and expects to complete sales of Shares and Warrants to them. The Investor and the Other Investors
are hereinafter sometimes collectively referred to as the “Investors,” and this Agreement and the
Subscription Agreements executed by the Other Investors are hereinafter sometimes collectively referred to as the “Agreements.”


 


2.3     Investor
acknowledges that the Company has agreed to pay Roth Capital Partners, LLC (the “Placement Agent”) a
fee (the “Placement Fee”) and to reimburse the Placement Agent for certain expenses in respect of
the sale of the Shares and the Warrants to the Investor.


 


2.4     The
Company has entered into a Placement Agency Agreement, dated the date hereof, (the “Placement Agreement”),
with the Placement Agent that contains certain representations, warranties, covenants and agreements of the Company that may
be relied upon by the Investor, which shall be a third party beneficiary thereof. The Company confirms that neither it nor
any other Person acting on its behalf has provided the Investor or their agents or counsel with any information that constitutes
or could reasonably be expected to constitute material, nonpublic information, except as will be disclosed in the Prospectus and/or
in the Company’s Form 8-K to be filed with the Commission in connection with the Offering. The Company understands and confirms
that the Investor will rely on the foregoing representations in effecting transactions in securities of the Company.


 


3.    Closings
and Delivery of the Securities and Funds.


 


3.1    Closing.
The completion of the purchase and sale of the Shares and the Warrants (the “Closing”)
shall occur at a place and time (the “Closing Date”) to be specified by the Company and the
Placement Agent, and of which the Investors will be notified in advance by the Placement Agent, in accordance with Rule 15c6-l
promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). At the Closing,
(a) the Company shall cause American Stock Transfer & Trust Company, LLC, the Company’s “Transfer Agent”,
to deliver to the Investor the number of Shares set forth on the Signature Page registered in the name of the Investor or,
if so indicated on the Investor Questionnaire attached hereto as Exhibit A, in the name of a nominee designated by the Investor,
(b) the Company shall cause to be delivered to the Investor a Warrant for the number of Warrant Shares set forth on the Signature
Page and (c) the aggregate purchase price for the Shares and the Warrants being purchased by the Investor will be delivered by or
on behalf of the Investor to the Company.


 



    	 



    	 



    

 


3.2  Conditions
to the Obligations of the Parties. 


 


(a)     Conditions
to the Company’s Obligations. The Company’s obligation to issue and sell the Shares and the Warrants to the
Investor shall be subject to: (i) the receipt by the Company of the purchase price for the Shares and the Warrants being purchased
hereunder as set forth on the Signature Page and (ii) the accuracy of the representations and warranties made by the Investor
and the fulfillment of those undertakings of the Investor to be fulfilled prior to the Closing Date.


 


(b)     Conditions
to the Investor’s Obligations. The Investor’s obligation to purchase the Shares and the Warrants will be
subject to the accuracy of the representations and warranties made by the Company and the fulfillment of those undertakings of
the Company to be fulfilled prior to the Closing Date, including without limitation, those contained in the Placement Agreement,
and to the condition that the Placement Agent shall not have: (a) terminated the Placement Agreement pursuant to the terms
thereof or (b) determined that the conditions to the closing in the Placement Agreement have not been satisfied. The Investor’s
obligations are expressly not conditioned on the purchase by any or all of the Other Investors of the Shares and the Warrants that
they have agreed to purchase from the Company. The Investor understands and agrees that, in the event that the Placement Agent
in its sole discretion determines that the conditions to closing in the Placement Agreement have not been satisfied or if the Placement
Agreement may be terminated for any other reason permitted by such Placement Agreement, then the Placement Agent may, but shall
not be obligated to, terminate such Agreement, which shall have the effect of terminating this Subscription Agreement pursuant
to Section 14 below.


 


3.3     Delivery
of Funds.


 


(a)     DWAC
Delivery. If the Investor elects to settle the Shares purchased by such Investor through DTC’s Deposit/Withdrawal at
Custodian (“DWAC”) delivery system, no later than one (1) business day after the execution of this Agreement
by the Investor and the Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate purchase
price for the Shares and the Warrants being purchased by the Investor to the following account designated by the Company:


 


[To be separately provided to the Investor] 


 


(b)     Delivery
Versus Payment through The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor
by delivery versus payment through DTC, no later than one (1) business day after the execution of this Agreement by
the Investor and the Company, the Investor shall confirm that the account or accounts at the Placement Agent to be credited
with the Shares being purchased by the Investor have a minimum balance equal to the aggregate purchase price for the Shares
and the Warrants being purchased by the Investor.


 



    	 



    	 



    

 


3.4     Delivery
of Shares.


 


(a)     DWAC Delivery.
If the Investor elects to settle the Shares purchased by such Investor through DTC’s DWAC delivery system, no later
than one (1) business day after the execution of this Agreement by the Investor and the Company, the Investor shall
direct the broker-dealer at which the account or accounts to be credited with the Shares being purchased by such Investor are maintained,
which broker/dealer shall be a DTC participant, to set up a DWAC instructing the Transfer Agent to credit such account or accounts
with the Shares. Such DWAC instruction shall indicate the settlement date for the deposit of the Shares, which date shall
be provided to the Investor by the Placement Agent. Upon the closing of the Offering, the Company shall direct the Transfer Agent
to credit the Investor’s account or accounts with the Shares pursuant to the information contained in the DWAC.


 


(b)     Delivery
Versus Payment through The Depository Trust Company. If the Investor elects to settle the Shares purchased by such Investor
by delivery versus payment through DTC, no later than one (1) business day after the execution of this Agreement by
the Investor and the Company, the Investor shall notify the Placement Agent of the account or accounts at the Placement
Agent to be credited with the Shares being purchased by such Investor. On the Closing Date, the Company shall deliver the Shares
to the Investor through DTC directly to the account(s) at the Placement identified by Investor. Upon receipt of such Shares, the
Placement Agent shall promptly electronically deliver such Shares to the Investor, and simultaneously therewith payment shall be
made by the Placement Agent by wire transfer to the Company.


 


4.    Representations,
Warranties and Covenants of the Investor.


 


The Investor acknowledges,
represents and warrants to, and agrees with, the Company and the Placement Agent that:


 


4.1     The
Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments
in securities presenting an investment decision like that involved in the purchase of the Securities, including investments
in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page
and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct
as of the Closing Date and (c) in connection with its decision to purchase the Shares and the Warrants set forth on the Signature Page,
has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein and the Offering
Information.


 


4.2     (a)
No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that
would permit an offering of the Securities, or possession or distribution of offering materials in connection with the issue
of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor
is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which
it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all
cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure
or use of any information in connection with the issue, placement, purchase and sale of the Securities, except as set forth or
incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.


 



    	 



    	 



    

 


4.3     (a)
The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated
hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b)
this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except
as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying
any law, rule or regulation (including any federal or state securities law, rule or regulation).


 


4.4     The
Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package, the Offering Information or any other
materials presented to the Investor in connection with the purchase and sale of the Shares and the Warrants constitutes legal,
tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it,
in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor
also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the
Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants
on any securities exchange or other market or quotation system. The Investor understands that without an active market, the liquidity
of the Warrants will be limited. 


 


4.5     The
Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior
to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.


 


4.6     Since
the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information
regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases
or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s
securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including
Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees
that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock
if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without
limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act,
whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts,
calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and
similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or
foreign regulated brokers.


 



    	 



    	 



    

 


5.     Survival
of Representations, Warranties and Agreements; Third Party Beneficiary. Notwithstanding any investigation made by any
party to this Agreement or by the Placement Agent, all covenants, agreements, representations and warranties made by the Company
and the Investor herein will survive the execution of this Agreement, the delivery to the Investor of the Shares and Warrants being
purchased and the payment therefor. The Placement Agent shall be a third party beneficiary with respect to the representations,
warranties and agreements of the Investor in Section 4 hereof.


 


6.     Notices.
All notices, requests, consents and other communications hereunder will be in writing, will be mailed (a) if within the
domestic United States by first-class registered or certified airmail, or nationally recognized overnight express courier, postage
prepaid, or by facsimile or (b) if delivered from outside the United States, by International Federal Express or facsimile, and
will be deemed given (i) if delivered by first-class registered or certified mail domestic, three business days after so mailed,
(ii) if delivered by nationally recognized overnight carrier, one business day after so mailed, (iii) if delivered by International
Federal Express, two business days after so mailed and (iv) if delivered by facsimile, upon electronic confirmation of receipt
and will be delivered and addressed as follows:


 


(a)     if to the Company,
to:



Nile Therapeutics, Inc.

4 West 4th Avenue, Suite 400


San Mateo, California 9440


Attention: Chief Executive Officer

Fax: (415) 875-7075



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



Fredrikson & Byron, P.A.


200 South Sixth Street, Suite 4000


Minneapolis, Minnesota 55402


Attention: Christopher J. Melsha


Fax: (612) 492-7077


 


(b)     if to
the Investor, at its address on the Signature Page hereto, or at such other address or addresses as may have been furnished to
the Company in writing.


 


7.     Changes.
This Agreement may not be modified or amended except pursuant to an instrument in writing signed by the Company and the
Investor.


 


8.     Headings.
The headings of the various sections of this Agreement have been inserted for convenience of reference only and will not
be deemed to be part of this Agreement.


 


9.     Severability.
In case any provision contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby.


 



    	 



    	 



    

 


10.     Governing
Law. This Agreement will be governed by, and construed in accordance with, the internal laws of the State of New
York, without giving effect to the principles of conflicts of law that would require the application of the laws of any other
jurisdiction.


 


11.     Counterparts.
This Agreement may be executed in two or more counterparts, each of which will constitute an original, but all of which, when
taken together, will constitute but one instrument, and will become effective when one or more counterparts have been signed by
each party hereto and delivered to the other parties. The Company and the Investor acknowledge and agree that the Company shall
deliver its counterpart to the Investor along with the Prospectus Supplement (or the filing by the Company of an electronic
version thereof with the Commission).


 


12.     Confirmation
of Sale. The Investor acknowledges and agrees that such Investor’s receipt of the Company’s signed counterpart
to this Agreement, together with the Prospectus Supplement (or the filing by the Company of an electronic version thereof
with the Commission), shall constitute written confirmation of the Company’s sale of the Shares and the Warrants to such
Investor.


 


13.     Press
Release. The Company and the Investor agree that the Company shall (a) prior to the opening of the financial markets in New
York City on April 2, 2012 issue a press release announcing the Offering and disclosing all material information regarding the
Offering and (b) as promptly as practicable on April 2, 2012 file a current report on Form 8-K with the Securities and Exchange
Commission including, but not limited to, a form of this Agreement and the form of Warrant as exhibits thereto.


 


14.     Termination.
In the event that the Placement Agreement is terminated by the Placement Agent pursuant to the terms thereof, this Agreement
shall terminate without any further action on the part of the parties hereto.


 






    	 



    	 



    



 


15.     Participation
Right. For a period of one year from the date hereof (the “Participation Period”), the Investor shall
have the right to participate in any subsequent offering (a “Subsequent Financing”) of Common Stock or securities
convertible into, exercisable or exchangeable for, or otherwise representing the right to acquire shares of Common Stock (“Common
Stock Equivalents”), other than an Excluded Issuance, as provided herein. At least three Business Days prior to the execution
of definitive documentation for a Subsequent Financing, the Company shall deliver to the Investor a written notice (“Pre-Notice”),
which Pre-Notice shall notify the Investor that the Company would like to share with the Investor certain information which may
constitute material non-public information with regard to the Company and which shall ask the Investor if it wants to review such
information. The Investor shall have the right, exercisable at any time within 24 hours after its receipt of the Pre-Notice, to
notify the Company whether it wishes to review such information; provided, however that if such 24-hour period would include a
period when the Investor is unable to respond due to a religious observance, then such 24-hour period shall be deemed to have commenced
upon the termination of such religious observance. Upon the written request of the Investor, and only upon a request by the Investor,
the Company shall promptly, but in no event later than 12 hours after the receipt of such request, deliver a subsequent notice
to the Investor (a “Subsequent Financing Notice”). The Subsequent Financing Notice shall describe in reasonable
detail the proposed terms of such Subsequent Financing, including a description of the material terms of any Common Stock Equivalents
to be offered, and the expected amount of gross proceeds of such Subsequent Financing (the “Subsequent Financing Gross
Proceeds”). The Investor shall notify the Company in writing within 24 hours after its receipt of the Subsequent Financing
Notice of its willingness to participate in the Subsequent Financing on the terms described in the Subsequent Financing Notice,
subject to completion of mutually acceptable documentation; provided, however that if such 24-hour period would include a period
when the Investor is unable to respond due to a religious observance, then the 24-hour period shall be deemed to have commenced
upon the termination of such religious observance. If the Investor fails to timely respond to a Pre-Notice or Subsequent Financing
Notice, the Investor shall have no right to participate in the Subsequent Financing. In the event that the Investor timely notifies
the Company that it wishes to participate in the Subsequent Financing, the Investor shall have the right to participate in the
Subsequent Financing in an amount not to exceed the result obtained by multiplying its Pro Rata Portion (as defined below) by 30%
of the Subsequent Financing Gross Proceeds. As used herein, “Pro Rata Portion” equals the ratio (expressed as
a fraction) of (x) the aggregate purchase price of the Shares and Warrants purchased by the Investor pursuant to this Agreement
(the “Subscription Amount”) and (y) the aggregate sum of all of the Subscription Amounts of all investors participating
in the Offering (the “Participating Investors”). The Company shall have the right to sell any amount of the
Subsequent Financing not purchased by the Investor and the Participating Investors to such investors as it may determine in its
sole discretion; provided, however, that any such sales shall be on terms no more favorable to the investors than those described
in the Subsequent Financing Notice. Notwithstanding the delivery of any Pre-Notice or Subsequent Financing Notice, the Company
shall have the right to terminate or delay the Subsequent Financing as it may determine in its sole discretion. The Investor acknowledges
and agrees that, upon its receipt of a Subsequent Financing Notice, the Investor shall be deemed to be in possession of material
non-public information regarding the Company and agrees to hold such information in confidence and not to disclose such information
to any other person and not to effect any transactions in the Common Stock until the earlier of (i) the public announcement of
the Subsequent Financing or (ii) the receipt of written notice from the Company that it has abandoned the Subsequent Financing
(which notice shall be given promptly following a determination by the Company not to proceed with a Subsequent Financing). As
used herein, the term “Excluded Issuance” means: (i) the issuance of the Securities pursuant to the Offering,
including the issuance of the Warrant Shares upon due exercise of the Warrants; (ii) the issuance of Common Stock, including options
or other incentives to acquire Common Stock, pursuant to the Company’s employee benefit plans, qualified stock option plans
or other employee compensation plans, in each case as adopted or approved by the Company’s Board of Directors; (iii) the
issuance of Common Stock pursuant to the valid exercises of options, warrants or rights outstanding on the date hereof; provided
that the terms of such securities are not amended after the date hereof to increase the number of shares of Common Stock issuable
thereunder or to lower the exercise or conversion price thereof; and (iv) the issuance of Common Stock pursuant to acquisitions
or strategic transactions approved by a majority of the disinterested directors of the Company, provided that any such issuance
shall only be to a entity which is, itself or through its subsidiaries, an operating company in a business synergistic with the
business of the Company and in which the Company receives benefits in addition to the investment of funds, but shall not include
a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary
business is investing in securities.


 



    	 



    	 



    

 


16.     Registration.
No later than fifteen (15) business days after the Closing Date, the Company shall file with the Commission a registration statement
on Form S-1 for the registration under the Securities Act of the issuance of the Warrant Shares upon exercise of the Warrants and
the subsequent resale of the Warrant Shares (the “Additional Registration Statement”). The Company shall use
its commercially reasonable efforts to cause the Additional Registration Statement to become effective as promptly as practicable
and in no event later than 90 days after the Closing Date (the “Effectiveness Deadline”) and shall use its commercially
reasonable efforts to maintain the effectiveness and availability of such registration statement until the earlier of (i) the expiration
of the Warrants in accordance with their terms or (ii) the time no Warrants remain outstanding. If the Additional Registration
Statement is not declared effective by the Commission on or prior to the Effectiveness Deadline, the Company will make pro rata
payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 1.0% of the aggregate amount invested
by such Investor for each 30-day period or pro rata for any portion thereof following the Effectiveness Deadline during which the
Additional Registration Statement is not effective, subject to an aggregate limit of 12.0% of the aggregate amount invested by
such Investor. Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect
the right of the Investors to seek injunctive relief. Such payments shall be made to each Investor in cash no later than three
(3) business days after the end of each 30-day period.


 



    	 



    	 



    

 


EXHIBIT A






 


NILE THERAPEUTICS, INC.



INVESTOR QUESTIONNAIRE


 


Pursuant to Section 3 of Annex I to the Agreement,
please provide us with the following information:


 


	1.	 	The exact name that your Shares and Warrants are to be registered in.  You may use a nominee name if appropriate:	 	 
	 	 	 	 	 
	2.	 	The relationship between the Investor and the registered holder listed in response to item 1 above:	 	 
	 	 	 	 	 
	3.	 	The mailing address of the registered holder listed in response to item 1 above:	 	 
	 	 	 	 	 
	4.	 	The Social Security Number or Tax Identification Number of the registered holder listed in the response to item 1 above:	 	 
	 	 	 	 	 
	5.	 	Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained):	 	 
	 	 	 	 	 
	6.	 	DTC Participant Number:	 	 
	 	 	 	 	 
	7.	 	Name of Account at DTC Participant being credited with the Shares:	 	 
	 	 	 	 	 
	8.	 	Account Number at DTC Participant being credited with the Shares:	 	 





 



    	 



    	 



    

 


EXHIBIT B



 





FORM OF WARRANT