Exhibit 10.4


 


ASSET PURCHASE AND
ASSIGNMENT AGREEMENT


 


This ASSET PURCHASE
AND ASSIGNMENT AGREEMENT (this “Agreement”), dated as of March 16, 2021, is made between Anchiano Therapeutics,
Inc., a company organized under the laws of Delaware (“Anchiano”) and Kestrel Therapeutics, Inc.,
a company organized under the laws of Delaware (“Kestrel”; each of Anchiano and Kestrel, a “Party”
and, together, the “Parties”).


 


W I T N E S S E T H:


 


WHEREAS, Anchiano
is a party to a Collaboration and License Agreement (the “Collaboration and License Agreement”) entered into
as of September 13, 2019 by and between ADT Pharmaceuticals, LLC, a company organized and existing under the laws of Delaware (“ADT”),
and Anchiano; and


 


WHEREAS, Anchiano
wishes to sell to Kestrel, and Kestrel wishes to acquire from Anchiano, all of Anchiano’s rights and obligations in its business
to the extent related to the research, development and commercialization of Compounds and Products (as such terms are defined in
the Collaboration and License Agreement) (the “Purchased Business”).


 


NOW, THEREFORE
Anchiano and Kestrel hereby agree as follows:


 


		1.	PURCHASE AND SALE OF ASSETS, Assignment and Assumption.  



 


1.1            
Defined Terms. As used in this Agreement, each capitalized term that is not otherwise defined shall have the respective
meaning specified in Schedule A attached hereto.


 


1.2            
Transferred Assets. Subject to the terms and conditions of this Agreement, at the Closing (as such term is defined below)
Anchiano shall sell to Kestrel, and Kestrel shall purchase from Anchiano, the following assets of Anchiano related to the Purchased
Business (the “Transferred Assets”):


 


(i) all rights,
interests, licenses and obligations of Anchiano in the Collaboration and License Agreement;


 


(ii) all other
assets, used by Anchiano exclusively in connection with the Purchased Business, which consist exclusively of the assets listed
on Schedule 1.2(ii) attached hereto (the “Other Transferred Assets”); and


 


(iii) all books
and records, other than accounting books and records, related to the Collaboration and License Agreement and the Other Transferred
Assets (the “Transferred Records”).


 


1.3            
Consent to Release Data, Reagents and Results. At the Closing, Anchiano will deliver to Kestrel its written consents,
each in the form of Schedule C-1 attached hereto, addressed to each of the parties to the agreements listed on Schedule
C-2 attached hereto (the “Development Services Agreements”), to release to Kestrel all of the data, reagents
and results generated for Anchiano under each of the Development Services Agreements (the “Third Party Consents”).
Kestrel acknowledges and agrees that other than the delivery of the Third Party Consents, Anchiano shall have no obligation, responsibility
or liability with respect to (i) the Development Services Agreements, (ii) the release of the data, reagents and results generated
for Anchiano under each of the Development Services Agreements, and (iii) the data, reagents and results released, if released,
pursuant to the Third Party Consents.


 






     


     


    

 


1.4            
Assumed Liabilities. Subject to the terms and conditions of this Agreement, on and after the Closing Date, Kestrel
shall assume and agree to pay, perform and discharge the following Liabilities of Anchiano (the “Assumed Liabilities”):
(i) any Liabilities resulting from the ownership or use of the Transferred Assets by Kestrel that arise from any event, condition
or circumstance occurring after the Closing Date and not resulting from any breach by Anchiano of any of its obligations under
this Agreement; and (ii) any Taxes imposed on the Transferred Assets or that otherwise arise with respect to the use of the Transferred
Assets, in each case, that are payable on or after the Closing Date.


 


1.5            
Excluded Liabilities. Anchiano shall retain, and shall be responsible for paying, performing and discharging when
due, and Kestrel shall not assume or have any responsibility for paying, performing or discharging, any Liabilities of Anchiano
and its Affiliates other than the Assumed Liabilities (the “Excluded Liabilities”).  Without limiting the
foregoing, neither Kestrel nor its Affiliates shall be obligated to assume, and none of them does assume, and each of them hereby
disclaims responsibility for, any of the following Liabilities of Anchiano and its Affiliates: (i) any Liability attributable to
any asset, property or right that is not included in the Transferred Assets; (ii) any Liabilities payable under the Collaboration
and License Agreement prior to the Closing Date; (iii) any Liability attributable to any action of, or failure to act by, Anchiano
under the Collaboration and License Agreement prior to the Closing Date; (iv) any Liability attributable to the ownership, use,
operation or maintenance of any of the Other Transferred Assets on or prior to the Closing Date; and (v) all Taxes imposed on the
Transferred Assets or that otherwise arise with respect to the use of the Transferred Assets, in each case, that are payable prior
to the Closing Date.


 


1.6            
Purchase Price. As consideration for the assignment of the Transferred Assets, Kestrel shall, at the Closing, (i) pay to
Anchiano the sum of US$875,000 (the “Purchase Price”) (such amount is in addition to the “Upfront Payment”
in the amount of US$125,000 made by Kestrel to Anchiano prior to the Closing Date pursuant to the Term Sheet between the Parties
dated January 11, 2021), and (ii) assume the Assumed Liabilities.


 


1.7            
Bill of Sale; Assignment. The sale by Anchiano, and the purchase by Kestrel, of the Purchased Business shall be effectuated
pursuant to a Bill of Sale between Anchiano, as seller, and Kestrel, as purchaser (the “Bill of Sale”). In addition,
Anchiano shall assign and convey to Kestrel, and Kestrel shall assume, undertake and receive from Anchiano, Anchiano’s rights
and obligations in the Collaboration and License Agreement, pursuant to those certain instruments of Assignment and Assumption,
to be dated as of the date of the Closing, between Anchiano, as assignor, and Kestrel, as assignee (each such instrument, an “Assignment”
and, collectively, the “Assignments”), the form of which is attached hereto as Schedule B.


 






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		2.	Representations and Warranties. 



 


2.1          
Anchiano hereby represents and warrants to Kestrel as follows, subject to any exceptions contained in the Anchiano Disclosure
Schedule attached to this Agreement:


 


(i)       Anchiano
is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.


 


(ii) Anchiano has all
requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and all other
documents executed by Anchiano prior to or at the Closing in connection with the sale of the Purchased Business and the assignment
of the Transferred Assets to Kestrel, including without limitation the Bill of Sale and the Assignments (this Agreement and all
such other documents, collectively the “Transaction Agreements”). The execution and delivery by Anchiano of
the Transaction Agreements and the consummation by Anchiano of the transactions contemplated thereby have been duly and validly
authorized by all requisite corporate action. The Transaction Agreements will as of the Closing Date be duly executed and delivered
by, and, assuming each of them constitutes the valid and binding agreement of Kestrel, will constitute as of the Closing Date,
the legal, valid and binding obligation of, Anchiano enforceable against Anchiano in accordance with their respective terms, subject
to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting the enforceability of contractual
obligations and creditor’s rights generally and by the application of equitable principles by courts of competent jurisdiction,
sitting at law or in equity.


 


(iii)       The
execution, delivery and performance of the Transaction Agreements by Anchiano and the consummation by Anchiano of the transactions
contemplated thereby do not and will not: (a) conflict with or violate the organizational documents of Anchiano, (b) conflict
with or violate any Law, Order or Permit applicable to Anchiano, (c) violate any provision of or result in a breach, default
or acceleration of, or require a consent under, any material agreement or instrument to which Anchiano is a party or by which Anchiano
is bound, or constitute an event which, after notice or lapse of time or both, would result in any such violation, breach, default
or acceleration, (d) result in any Third Party having any right to participate in the transactions contemplated by this Agreement
or result in any Third Party having any right of first refusal, option or similar right with respect to any of the Transferred
Assets, or (e) result in the imposition of any Lien on the Transferred Assets.


 


(iv)       The
copy of the Collaboration and License Agreement included in Section 2.1(iv) of the Anchiano Disclosure Schedule attached to this
Agreement is true and correct.


 


(v)       Anchiano
has not previously sold, transferred, leased or assigned, or entered into any agreement to sell, transfer, lease or assign, all
or any portion of the Transferred Assets.


 


(vi)       The
Collaboration and License Agreement is valid and is in full force and effect; has not previously been amended, modified, supplemented
or superseded; is the sole agreement between Anchiano and ADT; and is the valid and binding obligation of Anchiano, enforceable
in accordance with its respective terms.


 






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(vii)       ADT
has not provided Anchiano with written notice regarding any default by Anchiano under such Collaboration and License Agreement.
There are no uncured defaults on the part of Anchiano under the Collaboration and License Agreement, and there are no events that
have occurred which, with notice or lapse of time or both, would constitute a default by Anchiano under the Collaboration and License
Agreement. To the knowledge of Anchiano, ADT is not in default under the Collaboration and License Agreement.


 


(viii) The Transferred
Assets constitute substantially all of the business of Anchiano to which the Collaboration and License Agreement relates.


 


(ix)        Except
as expressly set forth in Sections 2.1(i) though (viii) above, (a) the sale of the Purchased Business and the sale and assignment
of the Transferred Assets is being made on an “as is, where is” basis and (b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, ANCHIANO, ANCHIANO’S AFFILIATES AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
REGARDING THE PURCHASED BUSINESS AND THE TRANSFERRED ASSETS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE UNDER ANY CONTRACT, STRICT
LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS IN CONNECTION
WITH THE SUBJECT MATTER OF THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


 


2.2            
Kestrel hereby represents and warrants to Anchiano as follows:


 


(i)              
Kestrel is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.


 


(ii)            
 Kestrel has all requisite corporate power and authority to execute, deliver and perform its obligations under the Transaction
Agreements. The execution and delivery by Kestrel of the Transaction Agreements and the consummation by Kestrel of the transactions
contemplated thereby have been duly and validly authorized by all requisite corporate action. The Transaction Agreements will as
of the Closing Date be, duly executed and delivered by, and, assuming each of them constitutes the valid and binding agreement
of Anchiano, will constitute as of the Closing Date, the legal, valid and binding obligation of, Kestrel enforceable against Kestrel
in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and similar Laws affecting the enforceability of contractual obligations and creditor’s rights generally and by the application
of equitable principles by courts of competent jurisdiction, sitting at law or in equity.


 


(iii)       The
execution, delivery and performance of the Transaction Agreements by Kestrel do not and will not: (a) conflict with or violate
the organizational documents of Kestrel, or (b) violate any provision of or result in a breach, default or acceleration of,
or require a consent under, any material agreement or instrument to which Kestrel is a party or by which Kestrel is bound, or constitute
an event which, after notice or lapse of time or both, would result in any such violation, breach, default or acceleration.


 






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		3.	CLOSING.



 


3.1                    The transactions contemplated under this Agreement shall occur and take place at a closing (the “Closing”)
to be held on (A) the later of (i) March 31, 2021, and (ii) the date on which the shareholders of Anchiano Therapeutics Ltd. approve
the currently proposed merger with Chemomab Ltd.; (B) April 30, 2021 if such shareholder approval has not occurred by April 30,
2021, or (C) such other date as shall be mutually agreed between the Parties (such date, the “Closing Date”).


 


3.2                    At the Closing, Kestrel shall pay the Purchase Price, and each of the Parties shall execute and deliver or cause to be delivered
to the other Party all documents and instruments, including the Bill of Sale, the Assignments and the Third Party Consents, required
for the performance of the transactions contemplated hereunder.


 


4.                
PARTIES’ OBLIGATIONS. Subject to compliance with the terms described herein, each Party undertakes to take
all necessary steps, perform all acts required and execute and deliver to the other Party all such agreements, instruments or documents
which may be required for the performance of its obligations herein and the consummation of the transaction contemplated hereunder.
Upon and following the Closing, Kestrel shall assume the Assumed Liabilities and shall be bound by the terms and conditions of
the Collaboration and License Agreement and Anchiano shall have no further liability for the Assumed Liabilities in connection
therewith.


 


		5.	MISCELLANEOUS.



 


5.1             
All of the provisions of this Agreement and of any of the documents and instruments executed in connection herewith shall
apply to and be binding upon, and inure to the benefit of Anchiano and Kestrel, and their respective successors and assigns.


 


5.2          
This Agreement and the schedules hereto, together with the other documents and instruments executed and delivered in connection
herewith, including the Bill of Sale, the Assignments and the Existing CDA, set forth the entire agreement between Anchiano and
Kestrel relating to the transactions contemplated hereby, and all other prior or contemporaneous agreements, understandings, representations
or statements, oral or written, relating directly to the transactions contemplated hereby are superseded by this Agreement.


 


5.3          
This Agreement and the terms hereof may not be changed, waived, modified, supplemented, canceled, discharged or terminated
orally, but only by an instrument or instruments in writing executed and delivered by the Parties.


 


5.4           This
Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict
of laws principles. Each of the Parties hereby agrees to the exclusive jurisdiction and venue of the appropriate state or
federal court located in Miami, Florida in connection with any matter based upon or arising out of this Agreement or the
other Transaction Agreements. Each Party hereby consents to service of process in any such proceeding in any manner permitted
by the law of the jurisdiction in which jurisdiction and venue is located, and further consents to service of process by
internationally recognized courier service (e.g., DHL) at its address specified pursuant to Section ‎5.5.
Notwithstanding the foregoing in this Section ‎5.4, any Party may commence any
action, claim, cause of action or suit in a court other than the above-named courts solely for the purpose of enforcing an
order or judgment issued by one of the above-named courts. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LEGAL REQUIREMENTS
WHICH CANNOT BE WAIVED, EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY CLAIMS
OR COUNTERCLAIMS ASSERTED IN ANY LEGAL DISPUTE RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION AGREEMENT.


 






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5.5          
Any notice under this Agreement shall be sent to the Parties at their respective addresses set forth below or such other
addresses as may from time to time be notified in accordance with this section. Notices may be sent by hand, by internationally
recognized courier service (e.g., DHL) or by email, and shall be deemed to be given when delivered in the case of delivery by hand
or internationally recognized courier service or when confirmation of transmittal is received by the sender in the case of email.


 


To Anchiano: 


 


Anchiano Therapeutics, Inc.


One Kendall Square, Building1400E,
Suite 14-105, Cambridge, MA 02139


Attn:      CEO


 


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


 


Goldfarb Seligman & Co.


Ampa Tower, 98 Yigal Alon Street


Tel Aviv 6789141, Israel


Attn:     Aaron M. Lampert


 


To Kestrel:


 


Kestrel Therapeutics, Inc.


102 Sears Road, Wayland, MA 01778


Attn:          Frank
G. Haluska, M.D., Ph.D.


President and CEO


 


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


 


Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.


One Financial Center


Boston, MA 02111


Attn:      John J. Cheney, Esq.


 


6.6       No
delay or omission to exercise any right, power, or remedy accruing to any Party upon any breach or default under this
Agreement, shall be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit,
consent, or approval of any kind or character on the part of any Party of any breach or default under this Agreement, or any
waiver on the part of any Party of any provisions or conditions of this Agreement, must be in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise
afforded to any of the parties, shall be cumulative and not alternative.


 






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6.7       The
invalidity or unenforceability of any provision or part of any provision of this Agreement shall not affect the validity or enforceability
of any other provision or part thereof, and any invalid or unenforceable provision or part thereof shall be deemed to be separate,
severable and distinct, and no provision or part thereof shall be deemed dependent upon any other provision or part thereof unless
expressly provided for herein.


 


6.8       Neither
Party may assign this Agreement, or any of its rights, interests or obligations under this Agreement without the prior written
consent of the other Party.


 


6.9       This
Agreement may be executed in one or more counterparts, each of which when executed shall constitute an original and all of which
so executed shall constitute one and the same agreement.


 


[Remainder of page intentionally
left blank]


 






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IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed as of the day and year first above written.


 


	 	Anchiano Therapeutics, Inc.
	 	 
	 	By:	/s/ Neil Cohen
	 	 	Name: Neil Cohen
	 	 	Title: CEO
	 	 
	 	Kestrel Therapeutics, Inc.
	 	 
	 	By:	/s/ Frank Haluska
	 	 	Name: Frank Haluska
	 	 	Title: CEO




 






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Schedule A


 


Definitions


 


“Existing NDA” means
that certain Mutual Non-Disclosure Agreement, by and between the Parties, dated October 28, 2020, as amended.


 


“Governmental Entity”
means any court, tribunal, arbitrator, regulatory authority, agency, commission, department, ministry, official or other instrumentality
of the United States or other country, or any supra-national organization, or any foreign or domestic, state, county, city or other
political subdivision.


 


“Law” means any federal,
state, local or foreign law, statute, code or ordinance, or any rule or regulation promulgated by any Governmental Entity including
all decisions of any courts having the effect of law in each such jurisdiction.


 


“Liability” means any
and all debts, liabilities and obligations, whether known or unknown, asserted or unasserted, determinable or otherwise, accrued
or fixed, absolute or contingent, liquidated or unliquidated, incurred or consequential, or matured or unmatured, including, without
limitation, those arising under any Law, Litigation, Order, or agreement.


 


“Lien” means any mortgage,
lien, encumbrance, pledge, security interest, attachment, encumbrance or lien (statutory or otherwise) which (a) creates or confers
an interest in property to secure payment or performance of a Liability or which retains or reserves such an interest for such
purpose; or (b) otherwise constitutes an interest in, or claim against, property.


 


“Litigation”
means any suit, action, arbitration, cause of action, claim, complaint, criminal prosecution, investigation, inquiry, demand letter,
judicial, arbitration or other administrative proceeding, whether at law or at equity, before or by any court, Governmental Entity,
arbitrator or other tribunal.


 


“Order”
means any judgment, order, writ, injunction, ruling, stipulation, determination, award or decree of or by, or any settlement under
the jurisdiction of, any court or Governmental Entity.


 


“Permit”
means any license, permit, application, consent, certificate, registration, approval and authorization pending before, issued,
granted, given or otherwise made available by, or under the authority of, any Governmental Authority.


 


“Tax”
or “Taxes” means all income, excise, gross receipts, ad valorem, sales, use, employment, environmental, franchise,
profits, gains, property, transfer, value added, payroll, escheat or abandoned property, intangibles or other taxes, fees, stamp
taxes, duties, charges, levies or assessments of any kind whatsoever (whether payable directly or by withholding), together with
any interest and any penalties, additions to tax or additional amounts imposed by any Governmental Entity with respect thereto,
whether as a primary obligor, as a result of being a transferee, successor or a member of an affiliated, consolidated, unitary,
combined or other group, by contract, pursuant to Law or otherwise.


 






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Schedule 1.2(ii)


 


Other Assets
Used Exclusively in Connection with the Purchased Business


 


None


 






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Schedule B


 


Form of Instrument of Assignment and
Assumption 


 


On this [__] day of
[______], 2021, Anchiano Therapeutics, Inc., a company organized under the laws of the State of Delaware (“Assignor”),
hereby assigns to Kestrel Therapeutics, Inc., a company organized under the laws of the State of Delaware (“Assignee”),
all right, title and interest of Assignor in and to that certain agreement between Assignor and [______________], dated [_________],
copy of which is attached hereto as Exhibit A and made a part hereof]1
(the “Assigned Asset”).


 


Assignee hereby expressly
assumes all of the obligations imposed upon Assignor under the Collaboration and License Agreement accruing from and after the
date hereof[, and all existing monetary obligations under the Collaboration and License Agreement [other than the Excluded Liabilities]].
Assignor shall be released from all liabilities and responsibilities arising from the assigned contract.


 


This Assignment and
Assumption of the Collaboration and License Agreement is made by Assignor without any express or implied representation or warranty
whatsoever except to the extent expressly provided in that certain Asset Purchase and Assignment Agreement, dated as of March 16,
2021 (the “Agreement”), between Assignor and Assignee.


 


This Assignment and
Assumption of the Collaboration and License Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.


 


Any inconsistency between
the terms herein and the terms set forth in the Agreement shall be resolved in favor of the terms of the Agreement.


 


IN WITNESS WHEREOF,
Assignor and Assignee have caused this Assignment and Assumption to be executed as of the date first set forth above.


 


	Anchiano Therapeutics, Inc.	 	Kestrel Therapeutics, Inc.
	 	 	 
	By:	 	 	By:	 
	 	 	 
	Name:	 	Name:
	Title:	 	Title:




 





 



 


1 To be inserted for the applicable Transferred
Agreements


 






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Schedule C-1


 


Form of Third Party Consent


 






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Schedule C-2


 


Development Services Agreements


 






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