8-K

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): May 18, 2004

BioMarin Pharmaceutical Inc.

(Exact name of registrant as specified in its charter)

Delaware	000-26727	68-0397820
(State or other jurisdiction of incorporation or organization)	(Commission File Number)	(IRS Employer Identification No.)

371 Bel Marin Keys Boulevard, Suite 210, Novato, California	94949
(Address of principal executive offices)	(Zip Code)

Registrant’s telephone number, including area code: (415) 506-6700

Not Applicable

(Former name or former address, if changed since last report)

Item 2. Acquisition or Disposition of Assets.

On May 18, 2004, BioMarin Pharmaceutical Inc. (the “Registrant”) completed its acquisition of the business of making, manufacturing, marketing, selling, distributing and developing ORAPRED^®*, certain oral liquid prednisolone solution products and oral dissolving tablet prednisolone products (the “Pediatrics Business”) conducted by Ascent Pediatrics, Inc. (“Ascent”), a subsidiary of Medicis Pharmaceutical Corporation (“Medicis”).

Under the terms of the asset purchase agreement, securities purchase agreement, and license agreement (collectively, the “Transaction Agreements”) that govern the transactions, the Registrant (i) acquired from Medicis, Ascent and Medicis Manufacturing Corporation, a wholly-owned subsidiary of Medicis, certain pharmaceutical assets relating to the Pediatrics Business, including ORAPRED^® inventory, tangible assets, sales-related materials, contracts, and copyrights, in consideration for the payment of approximately $765,582 in cash and the assumption of certain liabilities under contracts entered into in connection with the Pediatrics Business, (ii) obtained from Medicis an option (the “Option”) to purchase, in approximately five years, all of the issued and outstanding capital stock of Ascent in consideration for the payment of $62.0 million in cash and $20.0 million in the Registrant’s common stock, and (iii) obtained from Ascent a worldwide, exclusive license to (with a right to sublicense) certain assets used in or relating to the Pediatrics Business, including technology, trademarks and improvements, in consideration for license payments totaling approximately $93.0 million in cash, which are to be paid over a five-year period and the assumption by the Registrant of $15.0 million of liabilities. The Registrant is obligated to exercise the Option in approximately five years unless product sales from the Pediatrics Business for the twelve months ending March 31, 2009 exceed 150% of the Pediatrics Business product sales in the twelve months ended March 31, 2004, in which event the Registrant has the right to elect not to exercise the Option. The exercise of the Option is subject to acceleration on specified material breaches of the license or a bankruptcy or insolvency proceeding involving Medicis or Ascent, and if such acceleration is due to a specified breach of the license by the Registrant, then all license payments will become due on the closing date for the purchase of shares under the Option. The license is terminable upon specified material breaches of the license and in the event of a specified breach by the Registrant, at Ascent’s election, the license becomes non-exclusive. In connection with the acquisition of the Pediatrics Business of Ascent, the Registrant also employed approximately 70 employees of Ascent involved in the sales and marketing activities of the Pediatrics Business.

The cash consideration that the Registrant paid at the closing was paid from the working capital of the Registrant and the Registrant anticipates that the cash consideration to be paid in the future in connection with the exercise of the Option and the under the license will be paid from the working capital of the Registrant. The shares of the Registrant’s Common Stock to be issued in connection with the exercise of the Option will be measured by the average closing sales price per share of Registrant’s Common Stock over the twenty trading days immediately preceding the Option closing date.

The amount of the consideration given, or to be given, in connection with the Transaction Agreements was based on a variety of factors, including the advise of the Registrant’s financial advisors and the value of comparable assets and transactions.

* ORAPRED^® is a registered trademark of Medicis Pediatrics, Inc., formerly known as Ascent Pediatrics, Inc., and is used under license.

Item 7. Financial Statements and Exhibits.

(a) and (b) Financial Statements of Business Acquired/Pro Forma Financial Information

Financial statements are not included in this initial report. The Registrant intends to file the required financial statements with respect to this transaction within sixty days of the date of the filing of this report.

(c) Exhibits

The following exhibits are filed herewith:

Exhibit 2.1 Asset Purchase Agreement dated as of April 20, 2004, by and among BioMarin Pharmaceutical Inc., Medicis Pharmaceutical Corporation, Ascent Pediatrics Inc. and BioMarin Pediatrics Inc.

Exhibit 2.2 Securities Purchase Agreement dated as of May 18, 2004, by and among BioMarin Pharmaceutical Inc., Medicis Pharmaceutical Corporation, Ascent Pediatrics Inc. and BioMarin Pediatrics Inc.

Exhibit 2.3 License Agreement dated as of May 18, 2004, by and among BioMarin Pharmaceutical Inc., Medicis Pharmaceutical Corporation, Ascent Pediatrics Inc. and BioMarin Pediatrics Inc.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	BioMarin Pharmaceutical Inc., a Delaware corporation
Date: June 2, 2004	By:	/s/ Louis Drapeau
		Louis Drapeau Chief Financial Officer

EXHIBIT INDEX

Exhibit No.	Description
Exhibit 2.1	Asset Purchase Agreement dated as of April 20, 2004, by and among BioMarin Pharmaceutical Inc., Medicis Pharmaceutical Corporation, Ascent Pediatrics, Inc. and BioMarin Pediatrics Inc.
Exhibit 2.2	Securities Purchase Agreement dated as of May 18, 2004, by and BioMarin Pharmaceutical Inc., Medicis Pharmaceutical Corporation, Ascent Pediatrics, Inc. and BioMarin Pediatrics Inc.
Exhibit 2.3	License Agreement dated as of May 18, 2004, by and among BioMarin Pharmaceutical Inc., Medicis Pharmaceutical Corporation, Ascent Pediatrics, Inc. and BioMarin Pediatrics Inc.

EX-2.1

Exhibit 2.1

ASSET PURCHASE AGREEMENT

among

MEDICIS PHARMACEUTICAL CORPORATION,

a Delaware corporation,

ASCENT PEDIATRICS, INC.,

a Delaware corporation,

BIOMARIN PHARMACEUTICAL INC.,

a Delaware corporation

and

BIOMARIN PEDIATRICS INC.,

a Delaware corporation

Dated as of April 20, 2004

TABLE OF CONTENTS

			Page
1.	PURCHASE AND SALE OF ASSETS; RELATED TRANSACTIONS		1
	1.1	Sale of Assets	1
	1.2	Assignment of Contracts	2
	1.3	Consideration for the Sale of Acquired Assets	2
	1.4	Transition and Supply	3
	1.5	Closing	3
	1.6	Post-Closing Adjusted Acquired Assets Payment Adjustment	4
	1.7	Liability for Taxes	5
	1.8	Substitute Arrangements	5
2.	REPRESENTATIONS AND WARRANTIES OF ASCENT AND MEDICIS		5
	2.1	Due Organization; Foreign Qualifications	6
	2.2	Authority; Binding Nature of Agreements	6
	2.3	Non Contravention; Consents	6
	2.4	Financial Information Statement	7
	2.5	Absence of Changes	7
	2.6	Title to Assets	8
	2.7	Customers; Distributors	8
	2.8	Suppliers	8
	2.9	Research and Development Activities; FDA	9
	2.10	Inventory	9
	2.11	Equipment, Etc	9
	2.12	Intellectual Property	10
	2.13	Contracts	11
	2.14	Liabilities	12
	2.15	Compliance with Legal Requirements	12
	2.16	Governmental Authorizations	12
	2.17	Tax Matters	13
	2.18	Employee and Labor Matters	14
	2.19	Benefit Plans; ERISA	15
	2.20	Insurance	16

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TABLE OF CONTENTS

(continued)

			Page
	2.21	Proceedings; Orders	16
	2.22	Fraudulent Transfers	17
	2.23	Investment Banking Fees	17
3.	REPRESENTATIONS AND WARRANTIES OF BIOMARIN AND BIOMARIN ACQUISITION		17
	3.1	Due Organization	17
	3.2	Authority; Binding Nature of Agreements	17
	3.3	Governmental and Other Authorizations	17
	3.4	Non-Contravention	18
	3.5	Proceedings; Orders	18
	3.6	Fraudulent Transfers	18
	3.7	Investment Banking Fees	18
	3.8	Liabilities	18
4.	PRE-CLOSING COVENANTS OF ASCENT, MEDICIS, BIOMARIN AND BIOMARIN ACQUISITION		19
	4.1	Access and Investigation	19
	4.2	Operation of Business	19
	4.3	Operation of BioMarin Business	20
5.	OTHER AGREEMENTS		21
	5.1	Reasonable Efforts; Filings and Consents	21
	5.2	Notification	21
	5.3	No Solicitation or Negotiation	21
	5.4	Public Announcements	22
	5.5	Further Actions	22
	5.6	Employees, Employee Benefit Matters; Non-Solicitation	23
	5.7	Confidentiality	24
	5.8	Purchase Price Allocation	24
	5.9	Governmental Authorizations	24
6.	CONDITIONS PRECEDENT TO BIOMARIN’S AND BIOMARIN ACQUISITION’S OBLIGATION TO CLOSE		24

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TABLE OF CONTENTS

(continued)

			Page
	6.1	Accuracy of Representations	24
	6.2	Governmental Approvals	25
	6.3	No Restraints	25
	6.4	Performance of Obligations	25
	6.5	Additional Documents	25
	6.6	Material Acquired Business Contracts	26
7.	CONDITIONS PRECEDENT TO MEDICIS’ AND ASCENT’S OBLIGATION TO CLOSE		26
	7.1	Accuracy of Representations	26
	7.2	Consents and Governmental Approvals	26
	7.3	No Restraints	26
	7.4	Performance of Obligations	27
	7.5	Additional Documents	27
8.	TERMINATION		27
	8.1	Termination Events	27
	8.2	Termination Procedures	28
	8.3	Effect of Termination	28
9.	SURVIVAL AND INDEMNIFICATION		29
	9.1	Survival of Representations and Covenants	29
	9.2	Indemnification by Medicis	29
	9.3	Indemnification by BioMarin	31
	9.4	Procedures Relating to Indemnification for Third Party Claims	32
	9.5	Other Claims	33
	9.6	Settlements	33
	9.7	No Consequential or Punitive Damages	34
10.	MISCELLANEOUS PROVISIONS		34
	10.1	Fees and Expenses; Investment Banking Fees	34
	10.2	Attorney’s Fees	34
	10.3	Notices	34
	10.4	Time of the Essence	36

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TABLE OF CONTENTS

(continued)

		Page
10.5	Headings	36
10.6	Counterparts	36
10.7	Governing Law; Venue	36
10.8	Dispute Resolution Procedures	37
10.9	Successors and Assigns; Parties In Interest	37
10.10	Exclusive Remedies; Specific Performance	38
10.11	Waiver	38
10.12	Amendments	38
10.13	Severability	38
10.14	Entire Agreement	38
10.15	Performance Guarantee	39
10.16	Construction	39
10.17	Bulk Transfer Laws	40
10.18	NO PROJECTION OR FINANCIAL FORECAST	40

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ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement is entered into as of April 20, 2004, by and among Medicis Pharmaceutical Corporation, a Delaware corporation (“Medicis”), Ascent Pediatrics, Inc., a Delaware corporation (“Ascent”), BioMarin Pharmaceutical Inc., a Delaware corporation (“BioMarin”), and BioMarin Pediatrics Inc., a Delaware corporation and wholly-owned subsidiary of BioMarin (“BioMarin Acquisition”). Capitalized terms used in this Agreement are defined herein and in Exhibit A.

RECITALS

WHEREAS, Medicis owns, of record and beneficially, all of the issued and outstanding capital stock of Ascent;

WHEREAS, Ascent, Medicis and Medicis Manufacturing Corporation, a Delaware corporation (“Medicis Manufacturing”), are engaged in the business of making, manufacturing, marketing, selling, distributing and/or developing ORAPRED^®, certain oral liquid prednisolone solution products and oral dissolving tablet prednisolone products (the “Pediatrics Business”);

WHEREAS, each of Ascent, Medicis and Medicis Manufacturing wish to sell and transfer to BioMarin Acquisition all of its ORAPRED^® inventory, certain raw materials and certain other assets used in the production of ORAPRED^®, subject to the terms and conditions of this Agreement; and

WHEREAS, BioMarin desires to employ certain employees of Ascent involved in the marketing, distribution and sale of products in the Pediatrics Business.

AGREEMENT

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

1. PURCHASE AND SALE OF ASSETS; RELATED TRANSACTIONS.

1.1 Sale of Assets. Each of Medicis and Ascent shall, or shall cause Medicis Manufacturing to, sell, assign, transfer, convey and deliver to BioMarin Acquisition, at the Closing (as defined below), good and valid title to the Acquired Assets, free and clear of any Encumbrances other than Permitted Encumbrances, on the terms and subject to the conditions set forth in this Agreement, and, at the Closing, BioMarin Acquisition shall purchase the Acquired Assets. For purposes of this Agreement, “Acquired Assets“ shall mean and include:

(a) all ORAPRED^® finished goods inventory (including samples) owned by Ascent, Medicis or Medicis Manufacturing and all raw materials related to ORAPRED^® owned by Ascent, Medicis or Medicis Manufacturing that are subject to the CIMA Contracts (the “Purchased Inventory”);

(b) the equipment, supplies and other tangible assets listed on Schedule 1.1(b) (the “Tangible Assets”), which Tangible Assets are sold “as is,” “where-is”;

(c) all advertising and promotional materials, telephone numbers and other sales-related materials, training materials and customer lists possessed by Ascent directly related to ORAPRED^®;

(d) the Contracts, including any committed but unfilled purchase orders existing on the Closing Date, listed on Schedule 1.1(d) (the “Acquired Business Contracts”); and

(e) all copyrights, copyright registrations and applications therefor and all other rights corresponding thereto throughout the world currently owned by Medicis or Ascent and embodied in the marketing and sales materials or training materials specifically directed to ORAPRED^®, including without limitation the right to create derivative works and compilations therefrom.

1.2 Assignment of Contracts.

(a) Subject to Section 1.8 and the other terms and conditions of this Agreement and the need to obtain any required consent from any third party, as of the Closing Date or such later date as may be specified in the applicable assignment and assumption agreement with respect to the Lyne Contract, each of Ascent, Medicis and Medicis Manufacturing, as applicable, will assign and transfer to BioMarin Acquisition all of its right, title and interest in and to the Acquired Business Contracts, and BioMarin shall assume all of the Assumed Liabilities.

(b) On the Closing Date, BioMarin shall place a purchase order or orders with Medicis Manufacturing under the Supply Agreement which orders shall replicate the then committed but unfilled purchase orders of Medicis Manufacturing with Lyne Laboratories Inc. Such purchase orders shall be limited to those purchase orders set forth on Schedule 1.2(b) and those purchase orders placed by Medics Manufacturing in the Ordinary Course of Business

1.3 Consideration for the Sale of Acquired Assets.

(a) The aggregate consideration for the Acquired Assets shall be Seven Hundred Sixty-Five Thousand Five Hundred Eighty-Two Dollars ($765,582), as adjusted as set forth in subsection (b) below, (as adjusted, the “Adjusted Acquired Assets Payment”) plus the assumption by BioMarin Acquisition of the Assumed Liabilities.

(b) The parties agree that the Adjusted Acquired Assets Payment has been adjusted by Seven Hundred Thousand Dollars ($700,000) to account for the estimated dollar amount for product returns.

(c) For purposes of this Agreement, “Assumed Liabilities” shall mean only the obligations of Ascent, Medicis or Medicis Manufacturing, as applicable, under the Acquired Business Contracts listed on Schedule 1.1(d), but only to the extent such obligations (A) arise after the Closing Date, (B) do not arise from or relate to any Breach by Ascent, Medicis or

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Medicis Manufacturing prior to the Closing Date of any provision of any of such Acquired Business Contracts, (C) do not arise from or relate to any event, circumstance or condition occurring or existing on or prior to the Closing Date that, with notice or lapse of time, would constitute or result in a Breach by Ascent, Medicis or Medicis Manufacturing of any of such Acquired Business Contracts, and (D) do not arise from the failure to obtain any required Consent from any third party in connection with the assignment and transfer of such Acquired Business Contracts to BioMarin Acquisition pursuant to this Agreement.

(d) Notwithstanding anything to the contrary contained in this Agreement, the Assumed Liabilities shall not include, and BioMarin Acquisition shall not be required to assume, perform or discharge, any other Liability of Ascent or Medicis or any Liability of any Affiliate of Ascent or Medicis, including, without limitation, any Liability under the Ascent Merger Agreement or arising out of, under, or in connection with, the Triumph Proceeding. For purposes of this Agreement, all Liabilities not expressly described in the definition of Assumed Liabilities are referred to as “Excluded Liabilities.”

(e) Method of Payment. The Adjusted Acquired Assets Payment shall be paid on the Closing Date in cash, by wire transfer of immediately available funds, to an account designated by Ascent not less than five (5) Business Days prior to the Closing Date.

1.4 Transition and Supply.

(a) Medicis and Ascent shall provide transition services to BioMarin and BioMarin Acquisition pursuant to the terms and conditions of a Transition Services Agreement, substantially in the form attached hereto as Exhibit B (the “Transition Services Agreement”). Notwithstanding anything contained in this Agreement to the contrary, all Liabilities with respect to product returns and Medicaid or Medicare reimbursements shall be governed by the Transition Services Agreement.

(b) Medicis Manufacturing shall provide products to BioMarin Acquisition pursuant to the terms and conditions of a Supply Agreement, substantially in the form attached hereto as Exhibit C (the “Supply Agreement”).

1.5 Closing.

(a) The closing of the sale of the Acquired Assets to BioMarin Acquisition (the “Closing”) shall take place at the offices of Paul, Hastings, Janofsky & Walker LLP, Twenty-Fourth Floor, 55 Second Street, San Francisco, California, at 10:00 a.m. on the later of (i) May 7, 2004, or (ii) the second Business Day after the last of the conditions set forth in Article 6 and Article 7 has been satisfied or waived (except for conditions which by their terms must be satisfied as of the Closing). For purposes of this Agreement, “Closing Date” shall mean the date as of which the Closing actually takes place, and “Effective Time” shall mean the time as of which the Closing actually takes place.

(b) At the Closing:

(i) Ascent and Medicis shall execute and deliver or cause Medicis Manufacturing to execute and deliver to BioMarin Acquisition such bills of sale, endorsements,

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assignments and other documents, including the Bill of Sale in the form attached hereto as Exhibit D (the “Bill of Sale”), as may be reasonably necessary or appropriate to assign, convey, transfer and deliver to BioMarin Acquisition good and valid title to the Acquired Assets they own, free and clear of any Encumbrances other than Permitted Encumbrances; and

(ii) BioMarin Acquisition shall pay to Ascent the Adjusted Acquired Assets Payment;

(iii) BioMarin Acquisition, Ascent and Medicis shall execute and deliver and Ascent and Medicis shall cause Medicis Manufacturing to execute and deliver an Assumption Agreement in substantially the form of Exhibit E (the “Assumption Agreement”);

(iv) BioMarin, BioMarin Acquisition, Medicis and Ascent shall execute and deliver the Transition Services Agreement;

(v) BioMarin Acquisition and Medicis Manufacturing shall execute and deliver the Supply Agreement;

(vi) Ascent and Medicis shall deliver to BioMarin Acquisition at its headquarters in Novato, California within two (2) Business Days of the Closing Date all the assets described in Section 1.1(c); and

(vii) BioMarin Acquisition shall cause each of the Business Employees to return the computers in their possession within five (5) Business Days after the Closing.

1.6 Post-Closing Adjusted Acquired Assets Payment Adjustment.

(a) The parties have agreed that the Adjusted Acquired Assets Payment (without regard to this adjustment contemplated in Section 1.3(b)) includes One Million Three Hundred Thirty Four Thousand Two Hundred Sixty Dollars ($1,334,260) of Purchased Inventory (the “Estimated Inventory Value”), valued at Ascent’s or Medicis’, as applicable, actual cost for raw materials at CIMA and carrying cost for finished goods (including samples) for Purchased Inventory.

(b) Within five (5) Business Days after the Closing Date, BioMarin Acquisition shall deliver to Ascent a statement (the “Closing Inventory Statement”) prepared by KPMG LLP (“KPMG”), setting forth and certifying the actual physical count and value of the Purchased Inventory (the “Actual Inventory Value”) as of the Effective Time based on a physical count conducted by KPMG and valued at Ascent’s or Medicis’, as applicable, actual cost for raw materials at CIMA and carrying cost for finished goods for Purchased Inventory. Each of BioMarin and Medicis shall have the right to have representatives or advisers (including accountants) observe the inventory procedures conducted by KPMG.

(c) The determination of KPMG of the Actual Inventory Value contained in the Closing Inventory Statement shall be final, binding, conclusive and nonappealable for all purposes under this Agreement. The costs associated with the performance of the actual physical count and value of the Purchased Inventory by KPMG shall be borne by BioMarin Acquisition.

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(d) Within twenty (20) days of the final determination of the Actual Inventory Value as set forth above, the following payments shall be made: (i) if the Actual Inventory Value is less than the Estimated Inventory Value, the difference between the Estimated Inventory Value and the Actual Inventory Value shall be paid in cash by Ascent to BioMarin Acquisition, and (ii) if the Actual Inventory Value is greater than the Estimated Inventory Value, BioMarin Acquisition shall pay in cash to Ascent the difference between the Actual Inventory Value and the Estimated Inventory Value.

(e) Promptly following the Closing Date, BioMarin Acquisition shall use commercially reasonable efforts to obtain a confirmation from each Business Employee of the amount of samples that such Business Employee held as of the Closing Date, and BioMarin Acquisition will promptly deliver to Medicis a confirmation of the total amount of such samples. Within 10 days of providing such confirmation to Medicis, (i) if the amount of samples reflected in the notice from BioMarin Acquisition to Medicis is less than samples held by representatives listed in Part 2.10 in the Ascent Disclosure Schedule, then the value of such difference (calculated at carrying cost) shall be paid in immediately available funds by Ascent to BioMarin Acquisition, and (ii) if the amount of the samples reflect in the notice from BioMarin Acquisition to Medicis is greater than samples held by representatives listed in Part 2.10 of the Ascent Disclosure Schedule, then the value of such difference (calculated at carrying cost) shall be paid in immediately available funds by BioMarin to Ascent.

1.7 Liability for Taxes. Notwithstanding anything to the contrary contained herein, each of Medicis and Ascent shall bear and pay, and shall reimburse BioMarin Acquisition and BioMarin Acquisition’s Affiliates for, any sales taxes, use taxes, transfer taxes, documentary charges, recording fees or similar taxes, charges, fees or expenses attributable to the transfer of the Acquired Assets to BioMarin Acquisition. BioMarin Acquisition agrees to timely sign and deliver such certificates or forms as may be necessary to establish an exemption from (or otherwise reduce), or make a report with respect to such taxes, charges, fees or expenses as reasonably requested by Ascent or Medicis.

1.8 Substitute Arrangements. Notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement shall be deemed to constitute an agreement to assign any claim, Contract, license, lease, commitment, permit or any right or privilege arising thereunder if an attempted assignment thereof, without the Consent of any Person, would constitute a Breach of such Contract. Prior to the Closing, Ascent and Medicis will each use its commercially reasonable efforts to obtain any Consents or waivers required to assign to BioMarin Acquisition all rights, benefits and interests under each Acquired Business Contract that requires the Consent of a third party, without any material conditions to such transfer or material changes or modifications of terms thereunder.

2. REPRESENTATIONS AND WARRANTIES OF ASCENT AND MEDICIS.

Each of Ascent and Medicis represents and warrants jointly and severally as of the date of this Agreement and as of the Closing Date, to and for the benefit of BioMarin and BioMarin Acquisition, that each of the following representations and warranties is true and correct.

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2.1 Due Organization; Foreign Qualifications. Each of Medicis, Medicis Manufacturing and Ascent is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Part 2.1 of the Ascent Disclosure Schedule sets forth each jurisdiction where Ascent is qualified, authorized, registered or licensed to do business as a foreign corporation. Medicis Manufacturing is a wholly-owned Subsidiary of Medicis.

2.2 Authority; Binding Nature of Agreements. Each of Ascent, Medicis Manufacturing and Medicis has all corporate power and authority to enter into and to perform its obligations under each of the Transaction Agreements to which it is or will become a party. The execution, delivery and performance by each of Ascent, Medicis Manufacturing and Medicis of the Transaction Agreements to which it is a party have been duly authorized by all necessary action on the part of Ascent, Medicis Manufacturing, Medicis and their stockholders, boards of directors and officers. Each Transaction Agreement to which Ascent, Medicis Manufacturing or Medicis is a party, assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitutes the legal, valid and binding obligation of Ascent, Medicis Manufacturing or Medicis, as applicable, enforceable against Ascent, Medicis Manufacturing or Medicis, as applicable, in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereinafter in effect relating to creditors’ rights generally or to general principles of equity (the “Enforceability Exception”).

2.3 Non Contravention; Consents. The execution and delivery of the Transaction Agreements, the License Agreement, the Security Agreement and the Escrow Agreement, and the consummation or performance by Medicis Manufacturing, Medicis or Ascent, as applicable, of their respective obligations hereunder and thereunder, do not and will not:

(a) contravene, conflict with or result in a violation of any Legal Requirement or any Order to which Medicis, Medicis Manufacturing, Ascent, any of the Acquired Assets or any of the Intellectual Property is subject;

(b) contravene, conflict with or result in a violation of any of the terms or requirements of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate or modify, any Governmental Authorization applicable solely to the Pediatrics Business;

(c) contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any (i) loan, credit or note agreement, mortgage, security agreement, promissory note, license or other agreement to which Medicis, Medicis Manufacturing or Ascent is bound or affected, the contravention or conflict with or violation of which would have an Ascent Material Adverse Effect, or (ii) Material Acquired Business Contract, subject to obtaining the Consent required thereunder listed on Part 2.3 of the Ascent Disclosure Schedule;

(d) give any Person the right to (i) declare a default or exercise any remedy under any Material Acquired Business Contract, (ii) accelerate the maturity or performance of any Material Acquired Business Contract, or (iii) cancel, terminate or modify any Material

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Acquired Business Contract, subject in each case to obtaining the Consent required thereunder listed on Part 2.3 of the Ascent Disclosure Schedule;

(e) result in the imposition or creation of any Encumbrance upon or with respect to any of the Acquired Assets or the Intellectual Property, other than Permitted Encumbrances; or

(f) contravene or conflict with the certificate of incorporation or bylaws of Medicis, Medicis Manufacturing or Ascent.

Except as set forth on Part 2.3 of the Ascent Disclosure Schedule and except with respect to the Acquired Business Contracts that are not required to be listed in Part 2.13(a) of the Ascent Disclosure Schedule, no filing with or notice to, or Consent from, any Person is or will be required in connection with the execution and delivery of any of the Transaction Agreements or the consummation or performance of any of the Transactions.

2.4 Financial Information Statement.

(a) Ascent has delivered to BioMarin Acquisition the Schedule of the “Net Sales,” “Cost of Sales,” “Gross Profit,” “Personnel,” “Promotion,” “Professional,” “Travel and Entertainment” and “Other” and “Orapred Contribution” items with respect to the ORAPRED^® product for Ascent’s fiscal year ended June 30, 2003 and for Ascent’s nine months ended March 31, 2004 as Part 2.4(a) of the Ascent Disclosure Schedule.

(b) The Schedule contained in Part 2.4(a) of the Ascent Disclosure Schedule is accurate and complete in all material respects.

2.5 Absence of Changes. Since December 31, 2003:

(a) no event has occurred that would reasonably be expected to have an Ascent Material Adverse Effect;

(b) Ascent has not sold or otherwise transferred, or leased or licensed, any portion of the Acquired Assets or any of the Intellectual Property to any other Person, except for sales of inventory in the Ordinary Course of Business;

(c) Ascent has not forgiven any debt or otherwise released or waived any right or claim related to the Pediatrics Business, the Acquired Assets or the Intellectual Property that individually or in the aggregate would reasonably be expected to have an Ascent Material Adverse Effect;

(d) neither Ascent nor Medicis has entered into any transaction or taken any material action, in each case related to the Pediatrics Business, other than in the Ordinary Course of Business; and

(e) except as set forth on Part 2.5(e) of the Ascent Disclosure Schedule, neither Ascent, Medicis Manufacturing nor Medicis has agreed, committed (in writing or otherwise) to take any of the actions referred to in clauses “(b)” through “(d)” above.

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2.6 Title to Assets.

(a) Ascent, Medicis Manufacturing or Medicis, as applicable, has good and valid title to all of the Acquired Assets. Except as set forth in Part 2.6(a) of the Ascent Disclosure Schedule, none of the Acquired Assets is subject to any Encumbrance other than Permitted Encumbrances. As of the Effective Time, none of the Acquired Assets will be subject to any Encumbrance other than Permitted Encumbrances.

(b) Except as provided in Section 2.6(a), the Tangible Assets are sold “as is, where is”. The representations and warranties set forth in this Section 2.6 are exclusive and in lieu of all other warranties of Medicis or Ascent, whether written, oral or implied regarding the Tangible Assets. Medicis or Ascent shall not, by virtue of having sold the Tangible Assets, be deemed to have made any other representation or warranty with respect to the Tangible Assets, including, but not limited to, any representation or warranty as to the merchantability, fitness for any use, design, condition, value or operation, as to the absence of any obligations based on strict liability in tort or as to the quality of the material or workmanship or the absence of any latent, inherent or other defect in the Tangible Assets or any part thereof, infringement of any patent, trademark or copyright, compliance of the Tangible Assets or any part thereof with any applicable laws or regulations or any other matter, whether similar or dissimilar to the foregoing, and that neither BioMarin nor BioMarin Acquisition has relied on any representation or warranty not set forth herein with respect to the Tangible Assets.

(c) The Acquired Assets and the Intellectual Property, together with BioMarin Acquisition’s rights under this Agreement, the License Agreement and the Supply Agreement, constitute all the tangible assets and intellectual property rights necessary, in all material respects, to market, sell and manufacture ORAPRED^® (as supported by the Transition Services Agreement) as conducted on the date hereof and on the Closing Date.

(d) None of Medicis, Medicis Manufacturing, Ascent or any of their Affiliates has any agreement, absolute or contingent, written or oral, with any other Person to effect any Acquisition Transaction or to sell or otherwise transfer any of the Acquired Assets, except for sales of inventory in the Ordinary Course of Business.

2.7 Customers; Distributors. Part 2.7 of the Ascent Disclosure Schedule provides an accurate and complete list of the revenues received from each Person that accounted for more than 5% of the gross revenues of the Pediatrics Business in fiscal 2003 or during the nine month period ended March 31, 2004. To the Knowledge of Medicis and Ascent, neither Medicis, Medicis Manufacturing nor Ascent has received any notice or other communication (in writing or otherwise), or any other information, indicating that any distributor of any of the Products intends to cease acting as a distributor of such Products or otherwise dealing with Ascent or Medicis.

2.8 Suppliers. Part 2.8 of the Ascent Disclosure Schedule accurately identifies and provides an accurate and complete list of each supplier of materials or services to Ascent, Medicis Manufacturing or Medicis in connection with the Pediatrics Business to which Ascent, Medicis Manufacturing or Medicis paid in excess of $10,000 during fiscal 2003 and the nine month period ended March 31, 2004. To the Knowledge of Medicis and Ascent, neither Ascent,

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Medicis Manufacturing nor Medicis has received any notice or other communication (in writing or otherwise), or any other information, indicating that any such supplier identified in Part 2.8 of the Ascent Disclosure Schedule intends to cease dealing with Ascent, Medicis Manufacturing or Medicis.

2.9 Research and Development Activities; FDA.

(a) Since November 15, 2001, neither Ascent nor any of its Representatives has received any written notices or correspondence from the United States Food and Drug Administration (the “FDA”) or any other Governmental Body requiring the delay, termination, or suspension of any clinical trials conducted by or on behalf of Ascent or in which Ascent has participated, or any disqualification of testing facilities used by Ascent. To the Knowledge of Ascent and Medicis, since November 15, 2001, no clinical investigator acting for Ascent has been, is or is threatened to become, the subject of any disbarment or disqualification proceedings by any regulatory agency or has been terminated or threatened to be terminated from any such investigation.

(b) Ascent’s activities related to research, development, manufacture, testing, distribution, holding, sales or marketing of each product or product candidate subject to the jurisdiction of the FDA under the Federal Food, Drug and Cosmetics Act (the “FDCA”) relating to the Pediatrics Business are in compliance in all material respects with all applicable requirements under the FDCA and any other applicable Legal Requirements including, (i) applicable Legal Requirements relating to good manufacturing practices, labeling, advertising, record keeping or filing of reports including 21 CFR Part 203 (Prescription Drug Marketing Act), or (ii) applicable Legal Requirements relating to sponsor obligations for products under an investigational new drug application, a new drug application or an abbreviated new drug application.

(c) Except as set forth in Part 2.9(c) of the Ascent Disclosure Schedule, Ascent has, prior to the execution of this Agreement, made available to BioMarin Acquisition copies of all documents in its possession material to assessing compliance of Ascent relating to the Pediatrics Business since November 15, 2001 with the FDCA and its implementing regulations, including copies of (i) all warning letters, notices of adverse findings and similar correspondence received since November 15, 2001, and (ii) any document concerning any significant oral or written communication received from the FDA since November 15, 2001.

2.10 Inventory. Part 2.10 of the Ascent Disclosure Schedule provides an accurate and complete breakdown of (i) all of the ORAPRED^® finished goods inventory (including samples) that was owned by Ascent, Medicis or Medicis Manufacturing as of April 18, 2004, and (ii) all raw materials related to ORAPRED^® that was owned by Ascent, Medicis or Medicis Manufacturing that were subject to the CIMA Contracts as of April 18, 2004, in each case including Ascent’s or Medicis’, as applicable, actual cost for raw materials and carrying cost for finished goods. All of the Purchased Inventory (a) is of such quality as to be usable and saleable in the Ordinary Course of Business, and (b) is free of any material defect or deficiency.

2.11 Equipment, Etc. Part 2.11 of the Ascent Disclosure Schedule accurately identifies all material equipment owned or used by Medicis solely in the Pediatrics Business or

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owned or used by Ascent, and accurately sets forth the original cost and carrying cost of each such asset owned by Ascent or Medicis.

2.12 Intellectual Property.

(a) Ascent is the sole and exclusive owner or has authority to license and/or sell the Intellectual Property and the Development Technology;

(b) Except as identified in Part 2.12(b) of the Ascent Disclosure Schedule, Ascent has the right, power and authority to grant licenses under the Intellectual Property and the Development Technology to BioMarin Acquisition in accordance with the terms and conditions of the License Agreement, free and clear of any Encumbrances, other than the Lyne License, the Supply Agreement and Permitted Liens;

(c) Ascent has not specifically admitted that any claim of an issued and unexpired patent or pending patent application included within the Taste Masking Related Patents is invalid or unenforceable through reissue or disclaimer (other than to the extent that any terminal disclaimer has been filed);

(d) (i) neither Ascent nor its Affiliates has granted to any third party or Affiliate any rights or licenses or has otherwise taken any action that materially and adversely affects the rights and licenses granted to BioMarin Acquisition under the License Agreement and (ii) neither Ascent nor its Affiliates has granted to any third party or Affiliate any rights or licenses that conflict with or materially and adversely affects the rights and licenses granted to BioMarin Acquisition under the License Agreement;

(e) To Ascent’s and Medicis’ Knowledge, the issued Taste Masking Related Patents are valid and enforceable and the manufacture, development, marketing, distribution, importation, sale, offer for sale, disposition or use of ORAPRED^® as carried out by Ascent or its Affiliates immediately prior to the Effective Time does not and will not infringe any patent rights, trade secrets or other industrial or intellectual property rights of any third party or Affiliate of Ascent, excluding any Medicis corporate identifier or mark used therewith;

(f) To Ascent’s and Medicis’ Knowledge, (i) no issued patent or patent application within the Taste Masking Related Patents or (ii) except as identified in Part 2.12(b) of the Ascent Disclosure Schedule, Trademark is involved in or is threatened to be involved in, any court proceeding, arbitration, interference, reissue, re-examination or opposition;

(g) Except as identified in Part 2.12(b) of the Ascent Disclosure Schedule, there are no claims, judgments or settlements, either actual or, to Ascent’s and Medicis’ Knowledge, threatened, relating to the Taste Masking Related Patents, Trademarks and/or the Know-How;

(h) Except as identified in Part 2.12(b) of the Ascent Disclosure Schedule, since November 15, 2001, to Ascent’s and Medicis’ Knowledge, no Person has infringed or misappropriated, and no Person is currently infringing or misappropriating, any Technology or Trademark;

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(i) Except as identified in Part 2.12(i) of the Ascent Disclosure Schedule, to Ascent’s and Medicis’ Knowledge, all filings and registrations related to the Trademarks are in good standing and all maintenance and renewal fees necessary to preserve the rights of Ascent in respect of the Trademarks have been paid;

(j) As of the Effective Date, to Ascent’s and Medicis’ Knowledge, since November 15, 2001, there has been (a) no misappropriation of any material trade secrets used in connection with the Pediatrics Business, (b) no current employee, independent contractor or agent of Ascent or Medicis employed in the Pediatrics Business has misappropriated any material trade secrets of any other Person in the course of the performance of its duties as an employee, independent contractor or agent of Ascent or Medicis employed in the Pediatrics Business, and (c) no current employee, independent contractor or agent of Ascent or Medicis is in default or breach of any non-disclosure agreement, assignment of invention agreement or similar agreement or contract regarding the protection, ownership, development, use or transfer of the Intellectual Property;

(k) Ascent has taken reasonable steps in accordance with normal industry practice to maintain the confidentiality of its material trade secrets related to the Pediatrics Business; and

(l) Each current employee and current independent contractor of Ascent or Medicis who contributed to the conception or development of the Taste Masking Related Patents and Development Patents has executed a valid and binding assignment to Ascent or Medicis of all rights they may hold therein.

2.13 Contracts.

(a) Part 2.13(a) of the Ascent Disclosure Schedule identifies each material Contract to which Ascent, Medicis or Medicis Manufacturing is a party and used in the Pediatrics Business (each a “Business Contract” and collectively the “Business Contracts”). Ascent and Medicis have delivered or made available to BioMarin Acquisition accurate and complete copies of all Business Contracts, including all amendments thereto. No Acquired Business Contract is oral. Each Material Acquired Business Contract is valid and in full force and effect and is enforceable against Ascent, Medicis or Medicis Manufacturing and, to the Knowledge of Medicis and Ascent, on the other parties thereto (subject, in each case, to the Enforceability Exception) in accordance with its terms.

(b) Neither Medicis, Medicis Manufacturing nor Ascent has materially violated or breached or declared or committed any material default under any Acquired Business Contract. To the Knowledge of Medicis and Ascent, no Person (not including Medicis, Medicis Manufacturing and Ascent) has violated or breached in any material way, or declared or committed any material default under, any Acquired Business Contract and to the Knowledge of Medicis and Ascent no event has occurred, and no circumstance or condition exists, that might (with or without notice or lapse of time): (i) result in a violation or breach of any provisions of any Acquired Business Contract, (ii) give any Person the right to declare a default or exercise any remedy under any Acquired Business Contract, (iii) give any Person the right to accelerate the maturity or performance of any Acquired Business Contract, or (iv) give any Person the right

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to cancel, terminate or modify any Acquired Business Contract. To the Knowledge of Medicis and Ascent, neither Medicis, Medicis Manufacturing nor Ascent has received any notice or other communication (in writing or otherwise) regarding any actual or alleged violation or breach of, or default under, any Acquired Business Contract. Neither Medicis, Medicis Manufacturing nor Ascent has waived any material right under any Acquired Business Contract.

(c) The assignment to BioMarin Acquisition and assumption by BioMarin Acquisition of each Material Acquired Business Contract and, to the Knowledge of Medicis and Ascent, each Acquired Business Contract which is not a Material Acquired Business Contract requires the Consent of any third party to such Contract.

2.14 Liabilities. Neither Medicis, Medicis Manufacturing nor Ascent has, since November 15, 2001, (i) made a general assignment for the benefit of creditors, (ii) filed, or had filed against it, any bankruptcy petition or similar filing, (iii) suffered the attachment or other judicial seizure of all or a substantial portion of its assets, (iv) admitted in writing its inability to pay its debts as they become due, (v) been convicted of, or pleaded guilty or no contest to, any felony, or (vi) taken or been the subject of any action that may have an adverse effect on its ability to comply with or perform any of its covenants or obligations under any of the Transaction Agreements.

2.15 Compliance with Legal Requirements. Each of Medicis, Medicis Manufacturing and Ascent is in compliance with each Legal Requirement that is applicable to the conduct of the Pediatrics Business or the ownership or use of any of the Acquired Assets or the Intellectual Property, except to the extent any such noncompliance, individually or in the aggregate, would not reasonably be expected to have an Ascent Material Adverse Effect. To the Knowledge of Medicis and Ascent, no event has occurred, and no condition or circumstance exists, that could (with or without notice or lapse of time) constitute or result in a violation by Medicis, Medicis Manufacturing or Ascent of, or a failure on the part of Medicis, Medicis Manufacturing or Ascent to comply with, any Legal Requirement, except to the extent any such noncompliance, individually or in the aggregate, would not reasonably be expected to have an Ascent Material Adverse Effect. Neither Medicis, Medicis Manufacturing nor Ascent has received any notice or other communication (in writing or otherwise) from any Governmental Body or any other Person regarding any actual or alleged violation of, or failure to comply with, any Legal Requirement that would reasonably be expected to have an Ascent Material Adverse Effect.

2.16 Governmental Authorizations. Part 2.16 of the Ascent Disclosure Schedule identifies each material Governmental Authorization that is held by Medicis or Medicis Manufacturing and related solely to the Pediatrics Business or held by Ascent. Ascent, Medicis Manufacturing and Medicis have delivered to BioMarin Acquisition accurate and complete copies of such Governmental Authorizations, including all renewals thereof and all amendments thereto. Neither Medicis, Medicis Manufacturing nor Ascent has received any notice or other communication (in writing or otherwise) from any Person regarding (a) any actual, alleged or potential violation of or failure to comply with any term or requirement of any such Governmental Authorization or (b) any actual, proposed or potential revocation, withdrawal, suspension, cancellation, termination or modification of any such Governmental Authorization.

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2.17 Tax Matters.

(a) All material Tax Returns required to be filed by or on behalf of Medicis or Medicis Manufacturing with respect to the Pediatrics Business or Ascent with any Governmental Body with respect to any taxable period ending on or before the Closing Date (the “Pediatrics Business Returns”) have been or will be filed on or before the applicable due date (including any extensions of such due date). The information contained in such Tax Returns is accurate and complete in all material respects. All amounts shown on the Pediatrics Business Returns to be due on or before the Closing Date have been or will be paid on or before the Closing Date. Ascent and Medicis have delivered to (or made available for inspection by) BioMarin Acquisition accurate and complete copies of all material Pediatrics Business Returns that have been filed by or on behalf of Ascent since December 31, 2002.

(b) There are no unsatisfied liabilities for material Taxes (including liabilities for interest, additions to tax and penalties thereon and related expenses) with respect to any notice of deficiency or similar document received by Medicis or Medicis Manufacturing in connection with the Pediatrics Business or Ascent with respect to any material Tax (other than liabilities for Taxes asserted under any such notice of deficiency or similar document which are being contested in good faith by Medicis, Medicis Manufacturing or Ascent and with respect to which adequate reserves for payment have been established). There are no liens for Taxes upon any of the Acquired Assets or the Intellectual Property except liens for current Taxes not yet due and payable. No extension or waiver of the limitation period applicable to any of the Pediatrics Business Returns has been granted (by Medicis, Medicis Manufacturing or Ascent or any other Person), and no such extension or waiver has been requested from Medicis, Medicis Manufacturing or Ascent other than an extension resulting from the filing of a Tax Return after its due date in the Ordinary Course of Business. Neither Medicis, Medicis Manufacturing nor Ascent has entered into a closing agreement pursuant to Section 7121 of the Code, or any predecessor provisions thereof or any similar provision of state or other law. No claim or Proceeding is pending or, to Medicis’ and Ascent’s Knowledge, has been threatened against or with respect to Medicis or Medicis Manufacturing in connection with the Pediatrics Business or Ascent in respect of any material Tax.

(c) Except as set forth in Part 2.17 of the Ascent Disclosure Schedule, no powers of attorney or other authorizations are in effect that grant to any Person the authority to represent Medicis with respect to the Pediatrics Business or Ascent in connection with any Tax matter or Proceeding.

(d) Medicis and Medicis Manufacturing with respect to the Pediatrics Business and Ascent have properly withheld and paid all material Taxes required to be withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.

(e) None of the Acquired Assets or the Intellectual Property are subject to, or constitute, a safe harbor lease within the meaning of former Section 168(f) of the Code.

(f) There is no proposal for increasing the assessed value of any of the Acquired Assets or the Intellectual Property for Tax purposes and there are no pending

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Proceedings or public improvements which would result in the levy of any material special Tax or assessment against any of such assets.

(g) Neither Medicis, Medicis Manufacturing nor Ascent is a “foreign person” within the meaning of Section 1445 of the Code.

(h) Neither Medicis, Medicis Manufacturing nor Ascent has been, a “reporting corporation” subject to the information and reporting and record maintenance requirements of Section 6038A and the regulations thereunder.

2.18 Employee and Labor Matters.

(a) Part 2.18(a) of the Ascent Disclosure Schedule accurately sets forth, with respect to each field sales force employee of Ascent whose services are related to the Pediatrics Business (including any employee who is on a leave of absence or on layoff status) (such individuals, collectively, “Business Employees”): the name, title and date of hire of such employee. Medicis and Ascent have delivered to BioMarin pursuant to written communications dated April 8, 2004 and April 14, 2004: (i) the aggregate dollar amounts of the compensation (including wages, salary, commissions, director’s fees, fringe benefits, bonuses, profit sharing payments and other payments or benefits of any type) paid or payable to such employee from Ascent with respect to services performed in fiscal 2003 and with respect to services performed in fiscal 2004, through March 31, 2004; (ii) such employee’s annualized compensation as of the date of this Agreement; and (iii) with respect to each such employee on a leave of absence, whether the leave was approved by Ascent and, if so, the date of commencement thereof and the scheduled termination date thereof, if any. Since March 31, 2004, there has been no change in the base compensation amounts per Business Employee contained in the April 2004 communications described above or in the bonuses payable to such Business Employees other than normal fluctuations associated with quarter to quarter bonuses.

(b) Ascent is not a party to or bound by and since November 15, 2001 has not been a party to or bound by any union contract, collective bargaining agreement or similar Contract related to any Business Employee or the Pediatrics Business. Part 2.18(b) of the Ascent Disclosure Schedule identifies each employment contract between Ascent and a Business Employee. Except as set forth on Part 2.18(b) of the Ascent Disclosure Schedule, Ascent is not a party to any agreement for the provision of labor from any outside agency.

(c) Except as otherwise disclosed on Part 2.18(c) of the Ascent Disclosure Schedule, the employment of the Business Employees is terminable by Ascent at will and no employee is entitled to severance pay or other benefits (including acceleration of stock options or other stock acquisition rights) following termination or resignation. Ascent has delivered or made available to BioMarin Acquisition accurate and complete copies of all employee manuals and handbooks, disclosure materials, policy statements and documents used by Medicis or Ascent in the administration of personnel policies and other documents relating to the employment of (or benefits available to) the current Business Employees.

(d) Except as set forth in Part 2.18(d) of the Ascent Disclosure Schedule, to the Knowledge of Ascent and Medicis: (i) no Business Employee intends to terminate his or her

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employment; (ii) no Business Employee is a party to or is bound by any confidentiality agreement, noncompetition agreement or other Contract (with Ascent and/or Medicis) that may have an adverse effect on the performance by such employee of any of his duties or responsibilities as an employee of Ascent or as an employee of BioMarin; and (iii) no Business Employee has received a written offer from Medicis or any of its Subsidiaries to transfer to Medicis’ other businesses, Subsidiaries or Affiliates.

(e) (i) Neither Ascent with respect to any of its employees nor Medicis with respect to the Pediatrics Business or the Business Employees, have been found to have engaged in any unfair labor practice by the National Labor Relations Board, (ii) since November 15, 2001 there has not been any slowdown, work stoppage, labor dispute or union organizing activity involving any Business Employee and, to the Knowledge of Ascent and Medicis, no Person or union has threatened to commence any such slowdown, work stoppage, labor dispute or union organizing activity, (iii) to the Knowledge of Ascent and Medicis, no officer or employee of Medicis or Ascent is obligated under any Contract or subject to any Order or Legal Requirement that would interfere with the Pediatrics Business as currently conducted or proposed to be conducted, and (iv) neither the execution nor delivery of this Agreement, nor the carrying on of the Pediatrics Business as presently conducted nor to the Knowledge of Medicis and Ascent any activity of any officer of Medicis or Ascent or any Business Employee will conflict with or result in a breach of the terms, conditions or provisions of, constitute a default under, or trigger a condition precedent to any rights under any Contract or Employee Benefit Plan.

(f) Part 2.18(f) of the Ascent Disclosure Schedule sets forth the name of, and a general description of the services performed by, each independent contractor to whom Ascent has paid or owes amounts exceeding $35,000 in the aggregate for personal services in the past 12 months.

(g) Ascent has not incurred any liability under the Worker Adjustment Retraining and Notification Act (the “WARN Act”) (29 USC§§2101, et seq.) or any similar state law or statute relating to employment termination in connection with a mass layoff, plant closing or similar event (such as California Labor Code Section 1400, et seq.), in the six months preceding the Closing Date, and the transactions contemplated hereby will not give rise to any such liability. Ascent has complied in all material respects with all Legal Requirements related to the employment of the Business Employees.

2.19 Benefit Plans; ERISA.

(a) Part 2.19(a) of the Ascent Disclosure Schedule identifies each Employee Benefit Plan maintained or contributed to or required to be contributed to by Medicis, Ascent or any of their respective Affiliates with respect to any Business Employee or the Pediatrics Business (“Business Employee Benefits Plan”). Each Employee Benefit Plan is in writing.

(b) Neither Medicis, Ascent nor any of their Affiliates (nor any ERISA Affiliates) has any liability with respect to any Employee Benefit Plan that, and since November 15, 2001, neither Medicis, Ascent, nor any of their Affiliates (nor any ERISA Affiliates) have established, adopted, maintained, sponsored, contributed to, had any obligation to contribute to, participated in, or incurred any Liability with respect to any Employee Benefit Plan that: (i) is or

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was a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA; (ii) is or was a “multiple employer plan” (within the meaning of the Code or ERISA); (iii) is or was subject to Section 412 of the Code or Section 302 or Title IV of ERISA. No Business Employee Benefit Plan provides for post-employment health or welfare benefits (except as required by Code Section 4980B).

(c) Ascent has made available or caused to be delivered to BioMarin Acquisition with respect to each Business Employee Benefits Plan: (i) an accurate and complete copy of such plan and all amendments thereto (including any amendment that is scheduled to take effect in the future); (ii) an accurate and complete copy of each Contract (including any trust agreement, funding agreement, service provider agreement, insurance agreement, investment management agreement or recordkeeping agreement) relating to such plan; (iii) an accurate and complete copy of any description, summary, notification, report or other document that has been furnished to any employee of Ascent with respect to such plan; (iv) an accurate and complete copy of any form, report, registration statement or other document that has been filed with or submitted to any Governmental Body with respect to such plan; and (v) an accurate and complete copy of any determination letter, notice or other document that has been issued by, or that has been received by Medicis or Ascent from, any Governmental Body with respect to such plan.

(d) With respect to any Group Health Plan (as defined in Section 5000(b)(1) of the Code) maintained by Ascent, Ascent and each such Group Health Plan have complied in all material respects with the provisions of Part 6 of Title I of ERISA and Sections 4980B (“COBRA”), 9801 and 9802 of the Code.

2.20 Insurance.

(a) Part 2.20(a) of the Ascent Disclosure Schedule accurately sets forth, with respect to each material insurance policy maintained by or at the expense of, or for the direct or indirect benefit of, the Pediatrics Business: (i) the name of the insurance carrier that issued such policy; and (ii) a description of the type of coverage provided by such policy

(b) Part 2.20(b) of the Ascent Disclosure Schedule identifies each insurance claim made by Medicis or Medicis Manufacturing in connection with the Pediatrics Business or Ascent since December 31, 2002. To the Knowledge of Medicis and Ascent, no event has occurred, and no condition or circumstance exists, that would (with or without notice or lapse of time) give rise to or serve as a basis for any insurance claim.

2.21 Proceedings; Orders. Except as set forth in Part 2.21 (items 1-6) of the Ascent Disclosure Schedule, there is no pending Proceeding, and to the Knowledge of Ascent and Medicis, no Person has threatened to commence any Proceeding involving (a) Ascent, the Acquired Assets or the Intellectual Property, or (b) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, any of the transactions contemplated hereby. To the Knowledge of Ascent and Medicis, no event has occurred, and no claim, dispute or except as set forth in Part 2.21 (item 7) of the Ascent Disclosure Schedule, other condition or circumstance exists, that would give rise to or serve as a basis for the commencement of any such Proceeding. Medicis and Ascent have delivered or made available to BioMarin Acquisition accurate and complete copies of all pleadings (to which Medicis or

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Ascent has access) that relate to the Proceedings identified in Part 2.21 of the Ascent Disclosure Schedule. To the Knowledge of Ascent and Medicis, there is no Order to which Ascent or any of the Acquired Assets, the Intellectual Property or the Pediatrics Business is subject. To the Knowledge of Ascent and Medicis, no Business Employee of Ascent is subject to any Order that may prohibit such Business Employee from engaging in or continuing any conduct, activity or practice relating to the Pediatrics Business.

2.22 Fraudulent Transfers. Neither Medicis, Medicis Manufacturing nor Ascent is insolvent, nor will be rendered insolvent by any of the Transactions. Immediately after consummation of the transactions contemplated hereby, (i) each of Medicis, Medicis Manufacturing and Ascent will be able to pay its debts as they become due; (ii) neither Medicis, Medicis Manufacturing nor Ascent will have unreasonably small assets with which to conduct its present or proposed business. As used in this Section 2.22, “insolvent” means that the sum of the Person’s assets does not and will not exceed its debts and other liabilities at a fair valuation.

2.23 Investment Banking Fees. Neither Medicis, Ascent nor any of their Affiliates has incurred any investment banking, broker or finder fees that will become the responsibility of BioMarin or BioMarin Acquisition before or after the Effective Time.

3. REPRESENTATIONS AND WARRANTIES OF BIOMARIN AND BIOMARIN ACQUISITION.

Each of BioMarin and BioMarin Acquisition represents and warrants jointly and severally as of the date of this Agreement and as of the Closing Date, to and for the benefit of Medicis and Ascent, that each of the following representations and warranties is true and correct.

3.1 Due Organization. Each of BioMarin and BioMarin Acquisition is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

3.2 Authority; Binding Nature of Agreements. Each of BioMarin and BioMarin Acquisition has all corporate power and authority to enter into and perform its obligations under each of the Transaction Agreements to which it is or will become a party. The execution, delivery and performance by each of BioMarin and BioMarin Acquisition of the Transaction Agreements to which it is a party have been duly authorized by all necessary action on the part of BioMarin and BioMarin Acquisition and their stockholders, boards of directors and officers. Each Transaction Agreement to which BioMarin or BioMarin Acquisition is a party, assuming the due authorization, execution and delivery by the other parties hereto and thereto, constitutes the legal, valid and binding obligation of BioMarin or BioMarin Acquisition, as applicable, enforceable against BioMarin or BioMarin Acquisition, as applicable, in accordance with its terms, subject to the Enforceability Exception.

3.3 Governmental and Other Authorizations. The execution and delivery of the Transaction Agreements and the consummation or performance by BioMarin or BioMarin Acquisition, as applicable, of their respective obligations hereunder and thereunder, do not and will not require any approval of any Governmental Body on the part of BioMarin or BioMarin Acquisition or any material consent, waiver or approval of any other Person on the part of

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BioMarin or BioMarin Acquisition, other than the filing of a report and notification pursuant to the HSR Act and the expiration of all waiting periods thereunder.

3.4 Non-Contravention. The execution and delivery of the Transaction Agreements, License Agreement, Security Agreement and Escrow Agreement and the consummation or performance by BioMarin or BioMarin Acquisition, as applicable, of their respective obligations hereunder and thereunder, do not and will not (a) contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any loan, credit or note agreement, mortgage, security agreement, promissory note, license, contract or other agreement to which BioMarin or BioMarin Acquisition is bound or affected, the contravention or conflict with or violation of which would have a BioMarin Material Adverse Effect, (b) contravene or conflict with the certificate of incorporation or bylaws of BioMarin or BioMarin Acquisition, or (c) contravene, conflict with or result in a violation of, any Legal Requirement or any Order to which BioMarin, BioMarin Acquisition, or any of the assets of BioMarin or BioMarin Acquisition, is subject.

3.5 Proceedings; Orders. There is no pending Proceeding, and to the Knowledge of BioMarin or BioMarin Acquisition, no Person has threatened to commence any Proceeding involving (a) BioMarin which would reasonably be expected to have a BioMarin Material Adverse Effect or BioMarin Acquisition, or (b) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, any of the transactions contemplated hereby. To the Knowledge of BioMarin and BioMarin Acquisition, no event has occurred, and no claim, dispute or other condition or circumstance exists, that would give rise to or serve as a basis for the commencement of any such Proceeding.

3.6 Fraudulent Transfers. Neither BioMarin nor BioMarin Acquisition is insolvent, nor will be rendered insolvent by any of the Transactions. Immediately after consummation of the Transactions, (i) each of BioMarin and BioMarin Acquisition will be able to pay its debts as they become due; (ii) neither BioMarin nor BioMarin Acquisition will have unreasonably small assets with which to conduct its present or proposed business. As used in this Section 3.6, “insolvent” means that the sum of the Person’s assets does not and will not exceed its debts and other liabilities at a fair valuation.

3.7 Investment Banking Fees. BioMarin Acquisition and its Affiliates have not incurred any investment banking, broker or finder fees which will become the responsibility of Medicis or Ascent before or after the Effective Time.

3.8 Liabilities. Neither BioMarin nor BioMarin Acquisition has, since November 15, 2001, (i) made a general assignment for the benefit of creditors, (ii) filed, or had filed against it, any bankruptcy petition or similar filing, (iii) suffered the attachment or other judicial seizure of all or a substantial portion of its assets, (iv) admitted in writing its inability to pay its debts as they become due, (v) been convicted of, or pleaded guilty or no contest to, any felony, or (vi) taken or been the subject of any action that may have an adverse effect on its ability to comply with or perform any of its covenants or obligations under any of the Transaction Agreements.

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4. PRE-CLOSING COVENANTS OF ASCENT, MEDICIS, BIOMARIN AND BIOMARIN ACQUISITION.

4.1 Access and Investigation. Each party shall, and shall cause its Subsidiaries to, each afford to the other parties and to each other parties’ Representatives access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to all the books and records, Contracts, and personnel relating to the Pediatrics Business as the other party may reasonably request and, during such period, each shall furnish promptly to the other all other information as such other party reasonably may request, related to integration planning provided that no investigation pursuant to this Section 4.1 shall affect any representations or warranties made herein or the conditions to the obligations of the respective parties to consummate the Transactions.

4.2 Operation of Business.

(a) Each of Medicis and Ascent agrees that, during the Pre-Closing Period, it will, and Medicis will cause Medicis Manufacturing to:

(i) conduct the operations of the Pediatrics Business exclusively in the Ordinary Course of Business; and

(ii) use commercially reasonable efforts to (i) preserve intact the current business organization of the Pediatrics Business, (ii) keep available the services of the current Business Employees of the Pediatrics Business, and (iii) maintain the relations and good will with all suppliers, distributors, manufacturers, customers, landlords, creditors, licensors, licensees and independent contractors related to the Pediatrics Business;

(b) Without limiting Section 4.2(a), each of Medicis and Ascent agrees that, during the Pre-Closing Period, it will not, and Medicis will cause Medicis Manufacturing not to, in each case without the prior written consent of BioMarin Acquisition (which consent solely with respect to clause (xiii) shall not be unreasonably withheld or delayed):

(i) in a single transaction or series of related transactions, sell (including any sale leaseback), lease, license, pledge, transfer or otherwise dispose of (including through a dividend or distribution to any Person), or discontinue, all or any portion of the Acquired Assets (except in the Ordinary Course of Business with respect to the Purchased Inventory);

(ii) terminate, amend, modify or waive any material right under any Acquired Business Contract (other than in the Ordinary Course of Business) or the Lyne License;

(iii) dismiss any Business Employee other than for cause;

(iv) except in an amount, individually or in the aggregate, not to exceed $10,000, commit to make any capital expenditure or acquire any property or assets to the extent the commitment will be an Assumed Liability or the property or asset will be an Acquired Asset other than inventory and raw materials in the Ordinary Course of Business;

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(v) permit or allow any of the Acquired Assets to be subject to any Encumbrance which cannot be removed or satisfied prior to the Effective Time;

(vi) grant any increase in the compensation or benefits of any Business Employee (excluding any increase (not including any increase in base compensation) specifically provided for in the terms of, or legally required by, any bonus, pension, profit sharing or other plan or commitment) or any increase in the compensation (not including any increase in base compensation) or benefits payable, or to become payable, to any Business Employee, except for (A) increases in the Ordinary Course of Business to Business Employees in terms of proportion and timing, and (B) other changes that are required by applicable Legal Requirements;

(vii) adopt, enter into or amend, or become obligated under, any employment, severance, bonus, profit sharing, compensation, equity interest, option, pension, retirement, deferred compensation, health care, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any Business Employee (including any new employee of the Pediatrics Business), except as required to comply with changes in applicable Legal Requirements;

(viii) solely with respect to Ascent, commence, undertake or engage in any new and material line of business or commit to open or open a new office (or move or close any existing office);

(ix) solely with respect to Ascent, amend its certificate of incorporation, bylaws or similar constituent documents;

(x) adopt a plan or resolution to dissolve or liquidate Medicis, Medicis Manufacturing or Ascent;

(xi) take any action that, or omit to take any action not otherwise prohibited by the terms of this Agreement the omission of which, would, or is reasonably likely to, (A) result in failure to satisfy the condition contained in Section 6.1 or (B) result in failure to satisfy the condition contained in Section 6.4;

(xii) recognize any labor union or enter into any collective bargaining agreement that includes any Business Employee;

(xiii) settle or compromise any pending Proceeding on a basis requiring any agreement that would adversely affect the Acquired Assets or increase the Assumed Liabilities; or

(xiv) authorize, commit, enter into, or offer to enter into, any Contract to take any of the actions referred to in this Section 4.2(b).

4.3 Operation of BioMarin Business. Each of BioMarin and BioMarin Acquisition agrees that, unless BioMarin or BioMarin Acquisition receives the prior written consent of Medicis, during the Pre-Closing Period neither BioMarin nor BioMarin Acquisition shall:

(a) adopt a plan or resolution to dissolve or liquidate BioMarin or BioMarin Acquisition;

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(b) take any action that, or omit to take any action not otherwise prohibited by the terms of this Agreement the omission of which, would, or is reasonably likely to, (i) result in failure to satisfy the condition contained in Section 7.1 or (ii) result in failure to satisfy the condition contained in Section 7.4; or

(c) authorize, commit, enter into, or offer to enter into, any Contract to take any of the actions referred to in this Section 4.3.

5. OTHER AGREEMENTS.

5.1 Reasonable Efforts; Filings and Consents. Subject to the terms and conditions of this Agreement, each of the parties to this Agreement will use its reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary under applicable Legal Requirements, so as to permit consummation of the Transactions as promptly as reasonably practicable and in any event prior to the Termination Date and will use reasonable efforts to cooperate fully with the other parties hereto to that end. Without limiting the foregoing, each of BioMarin and Medicis agrees to file a notification and report form under the HSR Act with the appropriate Governmental Bodies, not later than the second Business Day following the date hereof.

5.2 Notification. During the Pre-Closing Period, each party shall promptly notify the other in writing of, and shall subsequently keep such other party updated on a current basis regarding any event, condition, fact or circumstance that would reasonably be expected to adversely affect the timely satisfaction of any of the conditions set forth in Article 6 or Article 7.

5.3 No Solicitation or Negotiation. Each of Medicis and Ascent shall ensure that, during the Pre-Closing Period, neither it nor any of its Representatives, directly or indirectly, shall: (a) solicit, initiate, or knowingly encourage or induce the making, submission or announcement of any inquiries or the making of any proposal or offer related to an Acquisition Transaction or take any action that could reasonably be expected to lead to any such inquiries or the making of any such proposal or offer, (b) furnish any information regarding Ascent to any Person in connection with or in response to an Acquisition Transaction or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Transaction, (c) engage in discussions or negotiations with any Person with respect to any Acquisition Transaction, (d) approve, endorse or recommend any Acquisition Transaction, (e) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition Transaction, or (f) enter into any letter of intent or similar document or any Contract having a primary purpose of effectuating, or which would effect, any Acquisition Transaction. Each of Medicis and Ascent shall immediately cease and cause to be terminated any Contract or discussions with any Person (other than BioMarin Acquisition) related to an Acquisition Transaction. In addition, if during the Pre-Closing Period Medicis or Ascent receives an offer or proposal (formal, informal, oral, written or otherwise) relating to, or any inquiry or contact from any Person with respect to, an Acquisition Transaction, such party shall immediately notify BioMarin thereof and provide BioMarin with details thereof, including the identity of the Person

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or Persons making such offer or proposal, and will keep BioMarin informed on a current basis of the status and details of any such offer or proposal and any modification to the terms thereof. Medicis and Ascent will promptly request each Person that has executed, within 12 months prior to the date of this Agreement, a confidentiality, standstill or similar agreement in connection with its consideration of a possible Acquisition Transaction to return all confidential information heretofore furnished to such Person by or on behalf of Medicis or Ascent.

5.4 Public Announcements. BioMarin, BioMarin Acquisition, Medicis and Ascent will consult with each other before issuing any press release or otherwise making any public statement with respect to this Agreement, the transactions contemplated hereby or in any of the documents executed in connection herewith. Without limiting the generality of the foregoing, none of Medicis, Ascent, BioMarin or BioMarin Acquisition shall, and none of Medicis, Ascent, BioMarin or BioMarin Acquisition shall permit any of their respective Representatives to, make any disclosure regarding this Agreement, the transactions contemplated hereby or in any of the documents executed in connection herewith unless (a) the other parties shall have approved such disclosure, or (b) such disclosure is required by applicable Legal Requirements (including requirements of the Commission, the New York Stock Exchange or NASDAQ) and the disclosing party has provided the other parties hereto with a copy of the proposed release or statement no less than two (2) Business Days prior to its release or publication. In the event that a party receives any inquiry regarding any other party, the receiving party shall refer such inquiry to such other party.

5.5 Further Actions.

(a) From and after the Effective Time, each party hereto shall execute and deliver such documents and take such other actions as the other party may reasonably request for the purpose of carrying out or evidencing any of the transactions contemplated hereby.

(b) Ascent and BioMarin Acquisition will cooperate in good faith in connection with the filing of Tax Returns, any audit or Proceeding with respect to Taxes and in connection with any other Proceeding in each case relating to the Acquired Assets or the Pediatrics Business, as and to the extent reasonably requested by BioMarin Acquisition or Ascent. Such cooperation shall include (i) the retention and (upon a party’s request) the provision of records and information which are reasonably relevant to the preparation of Tax Returns or to any such Proceeding and (ii) making relevant employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Ascent and BioMarin Acquisition shall (i) retain all Tax records and Tax Returns related to the Pediatrics Business relating to any period beginning before the Effective Time until the expiration of all relevant statutes of limitations (and, to the extent notified by Ascent or BioMarin Acquisition, any extensions thereof), and abide by all record retention agreements entered into with any Governmental Authority with respect to Taxes and (ii) give the other parties to this Agreement reasonable written notice prior to transferring, destroying or discarding any such Tax records and Tax Returns.

(c) Without limiting the foregoing, the parties acknowledge and agree that accounts receivable booked prior to the Effective Time shall be for the benefit of Ascent and that

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accounts receivable booked after the Effective Time shall be for the benefit of BioMarin Acquisition.

5.6 Employees, Employee Benefit Matters; Non-Solicitation.

(a) As of the Effective Time, Ascent shall terminate all of the Business Employees of Ascent; prior to the Effective Time, BioMarin shall offer employment, conditional on Closing and commencing as of the Effective Time, to the Business Employees with base compensation (without regard to bonuses) not less than the base compensation (without regard to bonuses) paid to them by Ascent as provided in the April 2004 communications described in Section 2.18(a). Additionally, BioMarin may, at its option, at any time prior to the Effective Time, offer employment to the individuals listed on Exhibit F. Ascent and Medicis shall use their reasonable best efforts to cause each Business Employee to commence employment with BioMarin. The employees that accept BioMarin’s offer of employment will be hired by BioMarin in connection with the Transactions (the “Transferred Employees”). As to any Person listed on Exhibit F who does not accept employment with BioMarin, Medicis or Ascent may, at their option, continue to employ such persons notwithstanding subsection (e) hereof.

(b) BioMarin (or any of its Affiliates) may terminate each Transferred Employee’s employment at will at any time and for any reason with or without cause and may modify each Transferred Employee’s compensation and employee benefits at any time. Nothing in this Agreement shall create any right in favor of any of the Transferred Employees or Business Employees with respect to BioMarin or its Affiliates. For a period of 36 months following the Closing Date, Ascent and Medicis shall continue to maintain and sponsor at least one Group Health Plan and Ascent and Medicis shall be solely responsible for providing continuation coverage (and all required actions including, but not limited to, providing required notices) pursuant to COBRA for any current or former employee and associated qualified beneficiaries who incur a qualifying event (as described in Section 4980B(3) of the Code) at any time prior to or in connection with the Closing and who elect COBRA continuation coverage.

(c) As of the Closing, Ascent and Medicis shall be responsible for and shall discharge and satisfy in full all amounts owed to any Transferred Employee including, but not limited to, wages, salaries, accrued vacation and employment, incentive, compensation, or bonus agreements or payments on account of termination and all amounts due and owing to each Transferred Employee with respect to and in accordance with the terms of each Business Employee Benefit Plan that have accrued on or prior to the Closing. Medicis or Ascent shall retain liability for all Liabilities with respect to the Business Employee Benefit Plans and their related trusts, if any.

(d) Ascent shall not effect a “plant closing” or “mass layoff”, as those terms are defined in the WARN or any similar state Legal Requirement at any time between the date hereof and the Effective Time, affecting in whole or in part any site of employment, facility, operating unit or Business Employee, without notifying BioMarin Acquisition in advance and obtaining the advance approval of BioMarin Acquisition, and complying with all provisions of WARN or any similar state Legal Requirement. Medicis and Ascent agrees that any and all liabilities with respect to any current or former employees of Ascent under WARN or any similar state Legal Requirement that arose on or before the Closing Date or on account of the

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Transactions, including without limitation liabilities attributable to any employee or former employee of Ascent who is terminated from employment or otherwise suffers an employment loss on or before the Closing Date, and any such liabilities to any individual who does not become a Transferred Employee, whenever the liabilities arose, shall be the sole obligation of Ascent and Medicis.

(e) For a period of two (2) years following the Effective Time, (i) each of Medicis and Ascent will not knowingly and will cause its Affiliates not to knowingly hire any Person then employed by BioMarin or its Affiliates, and (ii) each of Medicis and Ascent will not hire and will cause its Affiliates not to hire any Transferred Employees or any other Business Employee.

(f) For a period of two (2) years following the Effective Time, each of BioMarin and BioMarin Acquisition will not knowingly and will cause its Affiliates not to knowingly hire any Person then employed by Medicis or its Affiliates, other than any Business Employee.

5.7 Confidentiality. Each party will hold, and will cause its consultants and advisers to hold, in confidence all documents and information furnished to it by or on behalf of the other party in connection with the Transactions pursuant to the terms of that certain Nondisclosure Agreement entered into between Medicis and BioMarin dated January 21, 2004 (the “BioMarin/Medicis CDA”).

5.8 Purchase Price Allocation. The Parties shall allocate the purchase price consideration set forth in Section 1.3 (and all other capitalized costs) among the Acquired Assets (the “Purchase Price Allocation”) as set forth in Exhibit G hereto. Each of the Parties hereto agrees to report the transaction contemplated by this Agreement as the sale and purchase of the Acquired Assets for all state and federal Tax purposes and neither party shall take any position in any tax audits or tax returns which is inconsistent with such characterization or the Purchase Price Allocation.

5.9 Governmental Authorizations. Prior to the Effective Time, Medicis shall use commercially reasonable efforts to identify for BioMarin and BioMarin Acquisition all material Governmental Authorizations held by Medicis and necessary for the Pediatrics Business, other than any Governmental Authorizations listed on Part 2.16 of the Ascent Disclosure Schedule.

6. CONDITIONS PRECEDENT TO BIOMARIN’S AND BIOMARIN ACQUISITION’S OBLIGATION TO CLOSE.

BioMarin’s and BioMarin Acquisition’s obligations to purchase the Acquired Assets, and to take the other actions required to be taken by BioMarin and BioMarin Acquisition at the Closing are subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by BioMarin and/or BioMarin Acquisition, in whole or in part, in writing):

6.1 Accuracy of Representations. The representations and warranties made by Medicis and Ascent in this Agreement that are qualified by materiality or Ascent Material Adverse Effect shall be true and complete as of the Closing Date as if made on the Closing Date

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(except for representations and warranties made as of a specified date, which need be true only as of the specified date). The representations and warranties made by Medicis and Ascent in this Agreement that are not so qualified shall be true and complete in all material respects as of the Closing Date as if made on the Closing Date (except for representations and warranties made as of a specified date, which need be true in all material respects only as of the specified date). The closing conditions set forth in Section 6.1 shall not apply to the representations and warranties contained in Section 2.5(a) as a result of the occurrence of an event described in Part 6.1 of the Ascent Disclosure Schedule.

6.2 Governmental Approvals. All Consents required from any Governmental Body in order to consummate the Transactions shall have been obtained and shall be in full force and effect, and all waiting periods under the HSR Act shall have expired.

6.3 No Restraints.

(a) No preliminary injunction or other order, decree or ruling issued by a court of competent jurisdiction or other Governmental Body having jurisdiction, nor any statute, rule, regulation, or executive order promulgated or enacted by any Governmental Body shall be in effect that would make any of the transactions contemplated hereby illegal or otherwise prohibit the consummation of the transactions contemplated hereby.

(b) There shall not be pending any Proceeding in which a Governmental Body is a party challenging or seeking to restrain or prohibit the consummation of the transactions contemplated hereby or contemplated in the documents executed in connection herewith.

6.4 Performance of Obligations. Each of the covenants and obligations that Medicis and Ascent are required to comply with or to perform at or prior to the Closing shall have been duly complied with and performed in all material respects.

6.5 Additional Documents. BioMarin and BioMarin Acquisition shall have received the following documents:

(a) a certificate executed by a duly authorized officer not less senior than vice president of Ascent to the effect that Ascent has satisfied each of the conditions set forth in Sections 6.1 and 6.4; and

(b) a certificate executed by a duly authorized officer not less senior than vice president of Medicis to the effect that Medicis has satisfied each of the conditions set forth in Sections 6.1 and 6.4.

(c) an opinion letter from Akin Gump Strauss Hauer & Feld LLP, dated the Closing Date, in the form of Exhibit H;

(d) Medicis, Ascent and the Escrow Agent shall have executed and delivered an Escrow Agreement in substantially the form of Exhibit I (the “Escrow Agreement”);

(e) Medicis and Ascent shall have executed and delivered the License Agreement in substantially the form of Exhibit J (the “License Agreement”) and the Trademark

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Security Agreement in substantially the form attached to the License Agreement (the “Security Agreement”);

(f) Medicis and Ascent shall have executed and delivered the Securities Purchase Agreement in substantially the form of Exhibit K (the “Securities Purchase Agreement”);

(g) Medicis and Ascent shall have executed and delivered a Confidentiality Agreement in a form agreed upon by Medicis and BioMarin (the “Confidentiality Agreement”); and

(h) Each of the documents referred to in Section 1.5(b) shall have been executed by each of the parties thereto (not including, for this purpose, BioMarin and BioMarin Acquisition) and delivered to BioMarin Acquisition.

6.6 Material Acquired Business Contracts. All Consents of all Persons necessary to validly assign the Material Acquired Business Contracts to BioMarin Acquisition shall have been obtained and shall be in full force and effect.

7. CONDITIONS PRECEDENT TO MEDICIS’ AND ASCENT’S OBLIGATION TO CLOSE.

Medicis’ and Ascent’s obligations to sell and transfer the Acquired Assets and to take the other actions required to be taken by Medicis and Ascent at the Closing are subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Medicis and/or Ascent, in whole or in part, in writing):

7.1 Accuracy of Representations. The representations and warranties made by BioMarin and BioMarin Acquisition in this Agreement that are qualified by materiality or BioMarin Material Adverse Effect shall be true and complete as of the Closing Date as if made on the Closing Date (except for representations and warranties made as of a specified date, which need be true only as of the specified date). The representations and warranties made by BioMarin and BioMarin Acquisition in this Agreement that are not so qualified shall be true and complete in all material respects as of the Closing Date as if made on the Closing Date (except for representations and warranties made as of a specified date, which need be true only in all material respects as of the specified date).

7.2 Consents and Governmental Approvals. All Consents required to be obtained by BioMarin or BioMarin Acquisition from any Governmental Body in order to consummate the Transactions shall have been obtained and shall be in full force and effect and all waiting periods under the HSR Act shall have expired.

7.3 No Restraints.

(a) No preliminary injunction or other order, decree or ruling issued by a court of competent jurisdiction or other Governmental Body having jurisdiction, nor any statute, rule, regulation, or executive order promulgated or enacted by any Governmental Body shall be

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in effect that would make any of the transactions contemplated hereby illegal or otherwise prohibit the consummation of the transactions contemplated hereby.

(b) There shall not be pending any Proceeding in which a Governmental Body is a party challenging or seeking to restrain or prohibit the consummation of the transactions contemplated hereby or contemplated in the documents executed in connection herewith.

7.4 Performance of Obligations. Each of the covenants and obligations that BioMarin and BioMarin Acquisition are required to comply with or to perform at or prior to the Closing shall have been duly complied with and performed in all material respects.

7.5 Additional Documents. Ascent shall have received the following documents:

(a) an opinion letter from Paul, Hastings, Janofsky & Walker LLP dated the Closing Date, in the form of Exhibit L;

(b) a certificate executed by a duly authorized officer not less senior than vice president of BioMarin Acquisition to the effect that BioMarin Acquisition has satisfied each of the conditions set forth in Sections 7.1 and 7.4.

(c) a certificate executed by a duly authorized officer not less senior than vice president of BioMarin to the effect that BioMarin has satisfied each of the conditions set forth in Section 7.1 and 7.4.

(d) BioMarin, BioMarin Acquisition and the Escrow Agent shall have executed and delivered the Escrow Agreement;

(e) BioMarin and BioMarin Acquisition shall have executed and delivered the License Agreement and the Security Agreement;

(f) BioMarin and BioMarin Acquisition shall have executed and delivered the Securities Purchase Agreement;

(g) BioMarin and BioMarin Acquisition shall have executed and delivered the Confidentiality Agreement; and

(h) Each of the documents referred to in Section 1.5(b) shall have been executed by each of the parties thereto (not including, for this purpose, Medicis, Ascent and Medicis Manufacturing) and delivered to Ascent.

8. TERMINATION.

8.1 Termination Events. This Agreement may be terminated prior to the Closing:

(a) by BioMarin Acquisition if there is a Breach of any representation, warranty, covenant or obligation of Medicis or Ascent set forth in this Agreement which Breach (i) would give rise to the failure of a condition set forth in Section 6.1 or Section 6.4 and (ii) (if

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susceptible to cure) has not been cured within 20 Business Days following receipt by Medicis and Ascent of notice of such Breach (an “Ascent Breach”);

(b) by Ascent if there is a Breach of any representation, warranty, covenant or obligation of BioMarin or BioMarin Acquisition set forth in this Agreement which Breach (i) would give rise to the failure of a condition set forth in Section 7.1 or Section 7.4 and (ii) (if susceptible to cure) has not been cured within 20 Business Days following receipt by BioMarin Acquisition and BioMarin of notice of such Breach (a “BioMarin Breach”);

(c) by either BioMarin Acquisition or Ascent if the Closing has not taken place on or before July 31, 2004 (the “Termination Date”) (other than as a result of any failure on the part of the terminating party to comply with or perform its covenants and obligations under this Agreement);

(d) by the mutual written consent of the parties hereto; and

(e) by either Ascent or BioMarin Acquisition, if any Order by any Governmental Body of competent jurisdiction preventing or prohibiting consummation of any of the transactions contemplated hereby shall have become final and nonappealable.

8.2 Termination Procedures. If BioMarin Acquisition wishes to terminate this Agreement pursuant to Section 8.1, BioMarin Acquisition shall deliver to Ascent a written notice stating that BioMarin Acquisition is terminating this Agreement and setting forth a brief description of the basis on which BioMarin Acquisition is terminating this Agreement. If Ascent wishes to terminate this Agreement pursuant to Section 8.1, Ascent shall deliver to BioMarin Acquisition a written notice stating that Ascent is terminating this Agreement and setting forth a brief description of the basis on which Ascent is terminating this Agreement.

8.3 Effect of Termination. If this Agreement is terminated pursuant to Section 8.1, this Agreement shall become wholly void and of no further force and effect, without liability to BioMarin, BioMarin Acquisition, Medicis, Ascent or any of their respective Representatives or Affiliates, except that (a) the provisions set forth in Sections 5.4, 5.7, 8.3, 10.1, 10.2, 10.7 and 10.10 shall remain in full force and effect, and the provisions of Section 5.6(e)(i) and (f) shall remain in full force and effect, provided that the reference in such sections to “Effective Time” shall be deemed to mean the date of this Agreement and the phrase “other than any Business Employee” in Section 5.6(f) shall be deemed to be deleted, and (b) if this Agreement is terminated by BioMarin Acquisition pursuant to Section 8.1(a) due to a Breach of Section 5.3 and if either Medicis or Ascent enters into a Contract for an Acquisition Transaction within twelve (12) months of the date of termination of this Agreement, then Medicis and Ascent, jointly and severally, shall pay to BioMarin Acquisition in cash a fee in the amount of $10.0 million, together with all fees, costs and expenses incurred by or on behalf of BioMarin or BioMarin Acquisition as described in Section 10.1, within two (2) Business Days after the execution of such Contract. Notwithstanding anything to the contrary contained herein, nothing in this Section 8.3 shall be deemed to release any party from liability for any Breach under this Agreement.

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9. SURVIVAL AND INDEMNIFICATION

9.1 Survival of Representations and Covenants.

(a) All representations and warranties contained in this Agreement, the assignment documents described in Section 1.5(b)(i) and the Assumption Agreement shall survive the Closing Date and shall expire at 11:59 p.m. (Pacific Time) on the eighteen-month anniversary of the Closing Date and shall thereafter be of no further force or effect, except (i) the representations and warranties set forth in Sections 2.2, 2.6, 2.17, and 3.2 shall expire on the expiration of the relevant statute of limitations, and (ii) to the extent required to enforce the parties’ rights and obligations hereunder following the end of such period for any claims for which a Claim Notice (as defined below) has properly been made prior to the expiration of such period. All of the covenants, agreements and obligations of the parties contained in this Agreement, in the assignment documents described in Section 1.5(b)(i) and the Assumption Agreement shall survive (i) until fully performed or fulfilled, unless non-compliance with such covenants, agreements or obligations is waived in writing by the party or parties entitled to such performance or (ii) if not fully performed or fulfilled, until the expiration of the relevant statute of limitations. Notwithstanding anything in this Agreement to the contrary, if this Agreement is terminated pursuant to Section 8.1(c), (d) or (e), the representations and warranties contained in this Agreement shall thereafter be of no further force or effect.

(b) For purposes of this Agreement, a “Claim Notice” relating to a particular representation or warranty or covenant shall be deemed to have been given if any Indemnified Party, acting in good faith, delivers to the Indemnifying Party a written notice stating that such Indemnified Party reasonably believes that there is or has been a possible Breach of such representation or warranty or covenant and containing (i) a brief description of the circumstances supporting such Indemnified Party’s reasonable belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may arise as a direct or indirect result of such possible Breach.

(c) Notwithstanding that the accuracy and performance of only certain representations, warranties and covenants are conditions to the obligations of the parties hereto to consummate the transactions contemplated hereby, any party may pursue claims for indemnification with respect to Damages that arise from the Breach of any representation, warranty or covenant contained in this Agreement, regardless of whether the party asserting a claim for indemnification had knowledge of such Breach prior to the Closing.

9.2 Indemnification by Medicis.

(a) From and after the Effective Time, Medicis shall hold harmless and indemnify each of the BioMarin Indemnitees from and against, and shall compensate and reimburse each of the BioMarin Indemnitees for, any Damages that are suffered or incurred by any of the BioMarin Indemnitees or to which any of the BioMarin Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any Third-Party Claim) and that arise from or as a result of:

(i) any Breach of any of the representations or warranties made by Medicis or Ascent in this Agreement, the assignment documents described in Section 1.5(b)(i) or the Assumption Agreement;

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(ii) any Breach of any covenant or obligation of Medicis or Ascent contained in this Agreement, the assignment documents described in Section 1.5(b)(i) or the Assumption Agreement;

(iii) any Third Party Claim arising from the conduct or operation of the Pediatrics Business prior to the Effective Time;

(iv) any Excluded Liability; or

(v) any Proceeding relating directly or indirectly to any Breach, Liability or Third-Party Claim of the type referred to in clause (i) through (iv) above (including any Proceeding commenced by any BioMarin Indemnitee for the purpose of enforcing any of its rights under this Section 9.2).

(b) Subject to Section 9.2(d), Medicis shall not be required to make any indemnification payment pursuant to Section 9.2(a)(i) of this Agreement, Section 8.2(a)(i) of the Securities Purchase Agreement or Section 12.2(a)(i) of the License Agreement, until such time as and to the extent that the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the BioMarin Indemnitees, or to which any one or more of the BioMarin Indemnitees has or have otherwise become subject, exceeds, in the aggregate, $250,000 and then only to the extent of such excess.

(c) Notwithstanding anything in this Agreement to the contrary, but subject to Section 9.2(d), the aggregate liability for any indemnification payments pursuant to Section 9.2(a)(i) of this Agreement, Section 8.2(a)(i) of the Securities Purchase Agreement and Section 12.2(a)(i) of the License Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the “Medicis Cap”); provided, however, that the Medicis Cap shall not apply to any indemnification obligation of Medicis arising out of any Breach of Section 2.2 or 2.6.

(d) The limitations on the indemnification obligations of Medicis set forth in each of Section 9.2(b) and Section 9.2(c) shall not apply to any willful Breach, intentional misrepresentation or fraud by Medicis or Ascent.

(e) To the extent that actions or failures to act or other circumstances result in a Breach of a representation, warranty or covenant or other triggering event giving rise to a right of indemnification to a party under this Agreement, the License Agreement and/or the Securities Purchase Agreement, such party shall be entitled to only one recovery of the Damages resulting from such actions, failures to act or other circumstances giving rise to the right of indemnification, regardless of whether the actions, failures to act or other circumstances giving rise to the right of indemnification constitute a breach of more than one agreement. The parties acknowledge that the purpose of this provision is to prevent duplicative recovery for the same

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Damages, and not to preclude the recovery of Damages for separate and independent indemnity claims that may arise under the various agreements.

9.3 Indemnification by BioMarin.

(a) From and after the Effective Time, BioMarin shall hold harmless and indemnify the Medicis Indemnitees from and against, and shall compensate and reimburse each of the Medicis Indemnitees for, any Damages that are suffered or incurred by any of the Medicis Indemnitees or to which any of the Medicis Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any Third Party Claim) and that arise from:

(i) any Breach of any representation or warranty made by BioMarin or BioMarin Acquisition in this Agreement, the assignment documents described in Section 1.5(b)(i) or the Assumption Agreement;

(ii) any Breach of any covenant or obligation of BioMarin or BioMarin Acquisition in this Agreement, the assignment documents described in Section 1.5(b)(i) or the Assumption Agreement;

(iii) any Third Party Claim arising from the conduct or operation of making, manufacturing, marketing, selling, distributing, importing, exporting and developing the Products following the Effective Time, except Damages suffered or incurred or arising from the Breach of Medicis, Ascent or Medicis Manufacturing, as applicable, under the Supply Agreement, the Transition Services Agreement or the License Agreement;

(iv) any Assumed Liability; or

(v) any Proceeding relating directly or indirectly to any Breach, Liability or Third-Party Claim of the type referred to in clauses (i) through (iv) above (including any Proceeding commenced by any Medicis Indemnitee for the purpose of enforcing its rights under this Section 9.3).

(b) Subject to Section 9.3(d), BioMarin shall not be required to make any indemnification payment pursuant to Section 9.3(a)(i) of this Agreement, Section 8.3(a)(i) of the Securities Purchase Agreement or Section 12.3(a)(i) of the License Agreement, until such time as and to the extent that the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of its representations or warranties) that have been directly or indirectly suffered or incurred by the Medicis Indemnitees, or to which the Medicis Indemnitees have otherwise become subject, exceeds, in the aggregate, $250,000 and then only to the extent of such excess.

(c) Notwithstanding anything in this Agreement to the contrary, but subject to Section 9.3(d), the aggregate liability for any indemnification payments pursuant to Section 9.3(a)(i) of this Agreement, Section 8.3(a)(i) of the Securities Purchase Agreement and Section 12.3(a)(i) of the License Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the “BioMarin Cap”); provided, however, that the BioMarin Cap shall not apply to any indemnification obligation of BioMarin arising out of any Breach of Section 3.2.

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(d) The limitations on the indemnification obligations of BioMarin set forth in each of Section 9.3(b) and Section 9.3(c) shall not apply to any willful Breach, intentional misrepresentation or fraud by BioMarin or BioMarin Acquisition.

(e) To the extent that any actions or failures to act or other circumstances result in a Breach of a representation, warranty or covenant or other triggering event giving rise to a right of indemnification to a party under this Agreement, the License Agreement and/or the Securities Purchase Agreement, such party shall be entitled to only one recovery of the Damages resulting from such actions, failures to act or other circumstances giving rise to the right of indemnification, regardless of whether the actions, failures to act or other circumstances giving rise to the right of indemnification constitute a breach of more than one agreement. The parties acknowledge that the purpose of this provision is to prevent duplicative recovery for the same Damages, and not to preclude the recovery of Damages for separate and independent indemnity claims that may arise under the various agreements.

9.4 Procedures Relating to Indemnification for Third Party Claims.

(a) Within ten (10) Business Days after a BioMarin Indemnitee or Medicis Indemnitee obtains Knowledge of the commencement of any third-party claim, action, suit or proceeding (a “Third Party Claim”) or the occurrence of any fact which may become the basis of a Third Party Claim in respect of which an Indemnified Party is entitled to indemnification under this Agreement, such Indemnified Party shall notify in writing the Indemnifying Party of such Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and non-privileged documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.

(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate at its expense in the defense thereof and, if it so chooses within thirty (30) days after receipt of notice of such claim to assume the defense thereof at the Indemnifying Party’s expense, with counsel selected by the Indemnifying Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party shall be permitted to participate in the defense thereof and to employ counsel (not reasonably objected to by the Indemnifying Party), at its own expense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party (i) for any period during which the Indemnifying Party has not assumed the defense thereof or is not using commercially reasonable efforts to pursue the defense thereof (other than during the period in which the Indemnified Party failed to give notice of the Third Party Claim as provided above), or (ii) if the Indemnified Party reasonably determines (x) that there may be a conflict between the positions of the Indemnifying Party and the Indemnified Party in defending such claim or action, or (y) that there may be legal defenses

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available to the Indemnified Party different from or in addition to those available to the Indemnifying Party.

(c) If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnified Parties shall reasonably cooperate with the Indemnifying Party, at the expense of the Indemnifying Party, in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of non-privileged records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim for monetary Damages which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the monetary Damages in connection with such Third Party Claim and which releases the Indemnifying Party and the Indemnified Party completely in connection with such Third Party Claim and does not impose any covenant or commitment on the Indemnified Party.

9.5 Other Claims. In the event any Indemnified Party should have a claim against any Indemnifying Party under Section 9.2 or 9.3 that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice to the Indemnifying Party of such claim within 15 Business Days of obtaining Knowledge of the occurrence of such claim. The failure by any Indemnified Party so to notify the Indemnifying Party within this time period shall not relieve the Indemnifying Party from any liability which it may have to such Indemnified Party under Section 9.2 or 9.3, except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party does not notify the Indemnified Party within 15 Business Days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 9.2 or 9.3, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 9.2 or 9.3 and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined by agreement between the Indemnifying Party and the Indemnified Party or by judgment or decree of a court of competent jurisdiction. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnified Party shall attempt to resolve such claim in accordance with Section 10.8.

9.6 Settlements. No party may settle any claim, action or proceeding related to a liability to a third party without the consent of the other parties, if such settlement would impose any monetary obligation on the other parties or require the other parties to submit to an injunction or impose any covenant or commitment on the other party or otherwise limit the other party’s rights under this Agreement, and any payment made by a party in such a settlement without obtaining such consent shall be at its own cost and expense.

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9.7 No Consequential or Punitive Damages. No party hereto (or its Affiliates) shall, under any circumstance, be liable to any other party (or its Affiliates) for any consequential, exemplary, special, incidental or punitive Damages claimed by such other party under the terms of or due to any Breach of this Agreement.

10. MISCELLANEOUS PROVISIONS.

10.1 Fees and Expenses; Investment Banking Fees.

(a) Except as provided in Section 8.3, each party to this Agreement shall bear and pay all fees, costs and expenses (including all legal fees and expenses, that have been incurred or that are in the future incurred by, on behalf of or for the benefit of such party in connection with: (i) the negotiation, preparation and review of any letter of intent or similar document relating to any of the Transactions; (ii) the investigation and review conducted by such party and its Representatives with respect to the Transactions; (iii) the negotiation, preparation and review of this Agreement, the other Transaction Agreements and all bills of sale, assignments, certificates, opinions and other instruments and documents delivered or to be delivered in connection with the Transactions; (iv) the preparation and submission of any filing or notice required to be made or given in connection with any of the Transactions, and the obtaining of any Consent required to be obtained in connection with any of the Transactions; and (v) the consummation and performance of the Transactions.

(b) Notwithstanding anything to the contrary contained elsewhere in this Agreement, and regardless of whether or not the Closing takes place, each party to this Agreement shall pay its own investment banking, broker or finder fees, if any, incurred in connection with the Transactions.

10.2 Attorney’s Fees. If any legal action or other legal proceeding relating to any of the Transaction Agreements or the enforcement of any provision of any of the Transaction Agreements is brought by one party against any other party to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).

10.3 Notices. All notices, demands and other communications under or in connection with this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) if delivered personally, upon delivery, (b) if delivered by registered or certified mail (return receipt requested) from the United States, upon the earlier of actual delivery or three Business Days after being mailed, (c) if sent by overnight delivery by a recognized overnight delivery service for overnight delivery, upon the earlier of actual delivery or one Business Day after being sent, or (d) if given by facsimile, upon confirmation of transmission by facsimile (or, if such confirmation does not occur during normal business hours on a Business Day then on the next Business Day), in each case to the parties at the following addresses or facsimile numbers or to such other address or facsimile numbers as each party may designate for itself by like notice to the other parties:

if to Medicis:

Medicis Pharmaceutical Corporation

8125 N. Hayden Road

Scottsdale, Arizona 85258

Facsimile: (602) 778-6007

Attn: Jonah Shacknai

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if to Ascent:

Ascent Pediatrics, Inc.

8125 N. Hayden Road

Scottsdale, Arizona 85258

Facsimile: (602) 778-6007

Attn: Jonah Shacknai

With a copy to each of (which copies shall not constitute notice):

Medicis Pharmaceutical Corporation

8125 N. Hayden Road

Scottsdale, Arizona 85258

Facsimile: (602) 808-3881

Attn: General Counsel

and

Akin Gump Strauss Hauer & Feld LLP

1700 Pacific Ave., Suite 4100

Dallas, Texas 75201

Facsimile: (214) 969-4343

Attention: Michael E. Dillard, P.C.

if to BioMarin:

BioMarin Pharmaceutical Inc.

371 Bel Marin Keys Blvd., Suite 210

Novato, California 94949

Facsimile: (415) 382-7889

Attention: Fredric D. Price

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if to BioMarin Acquisition:

BioMarin Pharmaceutical Inc.

371 Bel Marin Keys Blvd., Suite 210

Novato, California 94949

Facsimile: (415) 382-7889

Attention: Fredric D. Price

With a copy (which copies shall not constitute notice) to:

BioMarin Pediatrics Inc.

371 Bel Marin Keys Blvd., Suite 210

Novato, California 94949

Facsimile: (415) 382-7889

Attention: Fredric D. Price

Paul, Hastings, Janofsky & Walker LLP

515 South Flower Street, 25th Floor

Los Angeles, California 90071

Attention: Siobhan McBreen Burke, Esq.

Telephone: (213) 683-6000

Facsimile: (213) 627-0705

10.4 Time of the Essence. Time is of the essence of this Agreement.

10.5 Headings. The headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.

10.6 Counterparts. This Agreement may be executed in several counterparts (including by facsimile), each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.

10.7 Governing Law; Venue.

(a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of New York (without giving effect to principles of conflicts of laws).

(b) Any legal action or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in New York, New York in the Borough of Manhattan. Each party to this Agreement:

(i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in New York, New York in the Borough of Manhattan (and each appellate court located in the State of New York) in connection with any such legal proceeding;

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(ii) agrees that each state and federal court located in New York, New York in the Borough of Manhattan shall be deemed to be a convenient forum; and

(iii) agrees not to assert (by way of motion, as a defense or otherwise), in any such legal proceeding commenced in any state or federal court located in New York, New York in the Borough of Manhattan, any claim that such party is not subject personally to the jurisdiction of such court, that such legal proceeding has been brought in an inconvenient forum, that the venue of such proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court.

(c) The parties hereto agree that, if any Proceeding is commenced against any Indemnified Party by any Person in or before any court or other tribunal anywhere in the world, then such Indemnified Party may proceed against the Indemnifying Party in or before such court or other tribunal with respect to any indemnification claim or other claim arising directly or indirectly from or relating directly or indirectly to such Proceeding or any of the matters alleged therein or any of the circumstances giving rise thereto.

10.8 Dispute Resolution Procedures. In the event any dispute arises between the parties with respect to the interpretation of this Agreement or with respect to the performance of either party, the parties shall first seek to resolve such dispute by negotiations between senior executives who have authority to settle the dispute. When a party believes there is a dispute relating to the Agreement, such party shall give written notice of the dispute to the other party or parties subject to the dispute. The senior executives shall meet promptly after the date of such notice and shall attempt in good faith within 45 days after the date of such notice to resolve the dispute prior to initiating litigation with respect to such matter. Notwithstanding the foregoing, if no such resolution is reached within such 45 days, then any party may initiate any proceeding or pursue any remedy it deems appropriate and that is not prohibited hereby.

10.9 Successors and Assigns; Parties In Interest.

(a) This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, the other Indemnified Parties, and the respective successors and assigns (if any) of the foregoing. No Person (including any creditor of Medicis or Ascent or any Business Employee, Transferred Employee or any other former or current employee of Ascent) who is not a party to this Agreement shall have any rights hereunder as a third-party beneficiary or otherwise.

(b) Neither this Agreement nor the rights and obligations of any party hereunder shall be assigned without the prior written consent of the other parties, which consent may be given or withheld in such party’s sole discretion. If Medicis or BioMarin or any of their respective successors (i) consolidates with or merges into any other Person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Medicis or BioMarin, as the case may be, shall assume the obligations set forth in this Agreement.

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10.10 Exclusive Remedies; Specific Performance. Except as expressly provided herein or in any Transaction Agreement, from and after the Effective Time, the remedies provided in Article 9 shall constitute the sole and exclusive remedy available to each party hereto for recovery against another party for Breaches of the representations, warranties, covenants and agreements in this Agreement. The parties hereto acknowledge that the material covenants, obligations and other provisions to be performed under this Agreement are of a special, unique and extraordinary character, and that irreparable injury will result from any violation or continuing violation of the provisions of this Agreement for which money damages may not be an adequate remedy. Accordingly, the parties agree that in the event of any Breach or threatened Breach by any party hereto of any material covenant, obligation or other provision set forth in this Agreement, the other party or parties shall be entitled (in addition to any other remedy that may be available to it) to seek in accordance with applicable law, (i) a decree or order of specific performance or mandamus to enforce the observance and performance of such covenant, obligation or other provision, and (ii) an injunction restraining such Breach or threatened Breach.

10.11 Waiver. No failure on the part of any Person to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Person in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No Person shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Person; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

10.12 Amendments. This Agreement may not be amended, modified, altered or supplemented other than by means of a written instrument duly executed and delivered on behalf of BioMarin, BioMarin Acquisition, Medicis and Ascent.

10.13 Severability. In the event that any provision of this Agreement, or the application of any such provision to any Person or set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Agreement, and the application of such provision to Persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.

10.14 Entire Agreement. The Transaction Agreements and the BioMarin/Medicis CDA set forth the entire understanding of the parties relating to the subject matter thereof and supersede all prior agreements and understandings among or between any of the parties relating to the subject matter thereof. This Agreement supercedes in its entirety that certain Memorandum of Understanding for the Licensing of Oral Liquid Solution Prednisolone Products among BioMarin, Medicis and Ascent, dated March 2, 2004.

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10.15 Performance Guarantee.

(a) BioMarin hereby unconditionally, irrevocably and absolutely guarantees to Medicis and Ascent the due and punctual performance and discharge of all of BioMarin Acquisition’s obligations under this Agreement, including, without limitation, the due and punctual payment of the Adjusted Acquired Assets Payment and any other amount that BioMarin Acquisition is or may become obligated to pay pursuant to this Agreement (collectively, the “Obligations”). The guarantee under this Section 10.15 is a guarantee of timely payment and performance of the Obligations and not merely of collection.

(b) To the fullest extent permitted by applicable law, the obligations of BioMarin hereunder shall remain in full force and effect without regard to, and shall not be affected or impaired by, (i) any change in the corporate structure or ownership of BioMarin Acquisition or the bankruptcy, insolvency, reorganization, dissolution, liquidation, or other similar proceeding relating to BioMarin Acquisition or any Affiliate or Subsidiary of either BioMarin Acquisition or BioMarin or (ii) any neglect, delay, omission, failure or refusal of BioMarin to take or prosecute any action in connection with this Agreement or any other agreement, delivered in connection herewith. In connection with this Section 10.15, BioMarin unconditionally waives: (i) any right to receive demands, protests, or other notices of any kind or character whatsoever provided that the same has been delivered to BioMarin Acquisition; (ii) any right to require Medicis or Ascent to proceed first against BioMarin Acquisition or to exhaust any security held by Medicis or Ascent or to pursue any other remedy; (iii) any defense based upon an election of remedies by Medicis or Ascent; (iv) any duty of Medicis or Ascent to advise BioMarin of any information known to Medicis or Ascent regarding BioMarin Acquisition or its ability to perform under this Agreement; and (v) all suretyship and other defenses of every kind and nature.

(c) The obligations of BioMarin under this Section 10.15 shall be automatically reinstated if and to the extent that for any reason any payment or other performance by or on behalf of BioMarin Acquisition in respect of the Obligations are rescinded or must be otherwise restored, and BioMarin agrees that it will indemnify Medicis and Ascent on demand for all costs and expenses (including reasonable attorneys fees and expenses) incurred by Medicis or Ascent in connection with such rescission or restoration. If in connection with the foregoing, Medicis or Ascent is required to refund part or all of any payment of BioMarin Acquisition, such payment by Medicis or Ascent shall not constitute a release of BioMarin from any liability hereunder, and BioMarin’s liability hereunder shall be reinstated to the fullest extent allowed under applicable law and shall not be construed to be diminished in any manner.

(d) This Section 10.15 shall survive the Closing and shall remain in full force and effect, subject to the provisions of Section 10.15(c).

10.16 Construction.

(a) For purposes of this Agreement, including the Exhibits hereto, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the

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masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders.

(b) The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.

(c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.

10.17 Bulk Transfer Laws. Each of BioMarin and BioMarin Acquisition acknowledges that neither Medicis nor Ascent will comply with the provisions of any bulk transfer laws of any jurisdiction in connection with the transactions contemplated by this Agreement.

10.18 NO PROJECTION OR FINANCIAL FORECAST. MEDICIS IS NOT MAKING ANY REPRESENTATION OR WARRANTY TO BIOMARIN AND BIOMARIN ACQUISITION WITH RESPECT TO (I) ANY FINANCIAL PROJECTION OR FORECAST RELATING TO THE PEDIATRICS BUSINESS, THE ACQUIRED ASSETS OR LIABILITIES OF MEDICIS OR ASCENT OR RELATED TO THE PHARMACEUTICAL MARKET AS A WHOLE OR THE MARKET FOR ORAL LIQUID PREDNISOLONE SOLUTION PRODUCTS OR ORAL DISSOLVING TABLET PREDNISOLONE PRODUCTS SPECIFICALLY, INCLUDING BUT NOT LIMITED TO ANY PROJECTIONS INCLUDING FUTURE SALES OF SUCH PRODUCTS, OR THE INTRODUCTION OF ANY COMPETITIVE PRODUCTS (WHETHER GENERIC OR NAME BRAND).

[SIGNATURE PAGE FOLLOWS]

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[SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT]

The parties to this Agreement have caused this Agreement to be executed and delivered by their duly authorized representatives as of April 20, 2004.

MEDICIS PHARMACEUTICAL CORPORATION, a Delaware corporation
By:	/s/ Mark A. Prygoki, Sr.
Name:	Mark A. Prygoki, Sr.
Title:	Chief Financial Officer, Executive Vice President, Secretary and Treasurer
ASCENT PEDIATRICS, INC., a Delaware corporation
By:	/s/ Mark A. Prygoki, Sr.
Name:	Mark A. Prygoki, Sr.
Title:	Secretary and Treasurer
BIOMARIN PHARMACEUTICAL INC., a Delaware corporation
By:	/s/ Fredric D. Price
Name:	Fredric D. Price
Title:	Chairman and Chief Executive Officer
BIOMARIN PEDIATRICS INC., a Delaware corporation
By:	/s/ Jeffrey Landau
Name:	Jeffrey Landau
Title:	Vice President and Assistant Secretary

Exhibit A

CERTAIN DEFINITIONS

For purposes of the Agreement (including this Exhibit A):

“Acquisition Transaction” shall mean any transaction or series of transactions (other than the transactions contemplated hereby and in the documents executed in connection herewith) involving:

(a) any merger, consolidation, share exchange, business combination, issuance of securities, direct or indirect acquisition of securities, recapitalization, tender offer, exchange offer or other similar transaction in which (i) Ascent is a constituent corporation, (ii) a Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) of Persons directly or indirectly acquires any of the outstanding securities of any class of Ascent (other than in connection with the acquisition of Medicis), or (iii) Ascent issues any securities;

(b) any direct or indirect sale, lease, exchange, transfer, license, acquisition or disposition of any business or businesses or of all or substantially all of the assets or rights that are part of the Pediatrics Business; or

(c) any liquidation or dissolution of Medicis or Ascent.

“Affiliate” shall mean with respect to any Person, any other Person controlling, controlled by or within common control with such Person. Without limiting the foregoing, Ascent is an Affiliate of Medicis and Medicis is an Affiliate of Ascent, and BioMarin is an Affiliate of BioMarin Acquisition and BioMarin Acquisition is an Affiliate of BioMarin.

“Agreement” shall mean the Asset Purchase Agreement to which this Exhibit A is attached (including the Ascent Disclosure Schedule), as it may be amended from time to time in accordance herewith.

“Ascent Disclosure Schedule” shall mean the schedule (dated as of the date of the Agreement) delivered to BioMarin Acquisition on behalf of Ascent, a copy of which is attached to the Agreement and incorporated in the Agreement by reference.

“Ascent Merger Agreement” shall mean that certain Agreement and Plan of Merger among Medicis, MPC Merger Corp. and Ascent, dated October 1, 2001.

“BioMarin Indemnitees” shall mean BioMarin Acquisition and BioMarin.

“BioMarin/Medicis CDA” means that certain Nondisclosure Agreement entered into between Medicis and BioMarin dated January 21, 2004.

“Breach” means an inaccuracy in or breach of, or any failure to comply with or perform, a representation, warranty, covenant, obligation or other provision.

A-1

“Business Day” shall mean any day excluding Saturday, Sunday and any day which shall be in the State of New York a legal holiday or a day on which banking institutions are authorized by law to close.

“CIMA Contracts” means the following contracts: (a) that certain Supply and Manufacture Agreement between Medicis Manufacturing Corporation, a wholly owned subsidiary of Medicis, and CIMA Labs Inc. (“CIMA”) effective as of June 26, 2003; and (b) that certain Development, Commercialization and License Agreement between Ascent and CIMA Labs, Inc. effective as of June 26, 2003.

“Code” shall mean the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.

“Commission” shall mean the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act of 1933, as amended.

“Consent” shall mean any approval, consent, ratification, permission, waiver, authorization, filing, registration or notification (including any Governmental Authorization).

“Contract” shall mean any written, oral, implied or other agreement, contract, understanding, arrangement, instrument, note, guaranty, indemnity, deed, assignment, power of attorney, certificate, purchase order, work order, insurance policy, benefit plan, commitment, covenant, assurance or undertaking of any nature.

“Damages” shall include any loss, damage, injury, Liability, claim, demand, settlement, judgment, award, fine, penalty, Tax, fee (including reasonable legal fees, expert fees, accounting fees or advisory fees), charge, cost (including reasonable costs of investigation) or expense of any nature.

“Development Patents” shall mean all the United States and foreign patents and utility models, invention registrations, supplementary protection certificates and applications therefor listed in Part L-1.1(t) of the Ascent Disclosure Schedule and all reissues, divisionals, renewals, extensions, provisionals, continuations, and continuations-in-part thereof.

“Development Technology” shall mean the Development Patents and the Development Know How.

“Dual Use Know How” shall mean technical, scientific and medical information, knowledge, know-how, inventions and trade secrets, which (a) (i) is owned by Ascent or its Affiliates and pertain or relate to both oral liquid prednisolone solution products and the Primsol product previously marketed by Ascent under Abbreviated New Drug Application 74-973 or (ii) is controlled by or licensed to Ascent or its Affiliates on a non-exclusive basis, and is sublicensable to a third party by Ascent or its Affiliates but is not owned by Ascent or its Affiliates and (b) is necessary for, used in or related to the development, registration, manufacturing, formulation, sale, use and commercialization of oral liquid prednisolone solution products.

A-2

“Employee Benefit Plan” shall have the meaning specified in Section 3(3) of ERISA and each other employee benefit plan, program or arrangement at any time maintained, sponsored or contributed to (or required to be contributed to) by Medicis or any of its Affiliates or ERISA Affiliates or with respect to which Medicis or any of its Affiliates has any liability or potential liability.

“Encumbrance” shall mean any lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance, equitable interest, claim, preference, right of possession, lease, license, covenant, infringement, Order, proxy, option, right of first refusal, preemptive right, legend, defect, impediment, exception, reservation, limitation, impairment, imperfection of title, condition or restriction of any nature (including any restriction on the transfer of any asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).

“Entity” shall mean any corporation (including any non profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, cooperative, foundation, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization or entity.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended and any regulations promulgated thereunder.

“ERISA Affiliate” shall mean any Person that is, was or would be treated as a single employer with Medicis, Ascent or any of their Affiliates under Section 414 of the Code.

“Escrow Agent” means U.S. Bank, N.A. or such other escrow agent as mutually agreed to by Medicis and BioMarin.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and any regulations promulgated thereunder.

“Governmental Authorization” shall mean any permit, license, certificate, franchise, concession, approval, consent, ratification, permission, clearance, confirmation, endorsement, waiver, certification, designation, rating, registration, qualification or authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Body or pursuant to any Legal Requirement.

“Governmental Body” shall mean any United States federal, state or local judicial, legislative, executive or other regulatory authority.

“HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and any regulations promulgated thereunder.

“Improvements” means any and all inventions, improvements, discoveries, enhancements, extensions, replacements, developments, refinements, or modifications to the Technology or the Development Technology, or utilizing the Technology or the Development Technology, or the respective use or the manufacturing processes therefor, whether or not

A-3

patentable, which may be conceived, made, developed or otherwise controlled by BioMarin Acquisition or its Affiliates during the term of the License Agreement including, without limitation, modifications in size, package forms, dosage strength, methods for administration, methods for delivering, or changes in the formulation including the addition of actives to products.

“Indemnified Parties” shall mean the Medicis Indemnitees or the BioMarin Indemnitees, as the case may be.

“Indemnifying Parties” shall mean Medicis or BioMarin, as the case may be.

“Intellectual Property” shall mean the Trademarks and the Technology.

“Intellectual Property Assets” means the Technology, the Development Technology, the Trademarks and the Improvements.

“Know How” shall mean technical, scientific and medical information, knowledge, know-how, inventions and trade secrets, that are necessary for the development, registration, manufacturing, packaging, stability, bioavailability, formulation, sale, use or commercialization of ORAPRED^® and the “Licensed Products” (as defined in the Development, Commercialization and License Agreement between Ascent Pediatrics Inc. and Cima Labs Inc.), as the case may be, including, without limitation: (a) physiochemical data, specifications, quality control information and procedures; (b) market research data solely to the extent Ascent has the right to assign such data to BioMarin Acquisition; and (c) information concerning the clinical, toxicological and pharmacological properties with respect to all of the foregoing, owned by Ascent or its Affiliates, as of the Effective Time; provided that Know How shall not include Dual Use Know How.

“Knowledge” An individual shall be deemed to have “Knowledge” of a particular fact or other matter if such individual is actually aware of such fact or other matter. Each of Ascent or Medicis shall be deemed to have “Knowledge” of a particular fact or other matter if any officer or individual identified on Exhibit M hereto has Knowledge of such fact or other matter. Each of BioMarin Acquisition or BioMarin shall be deemed to have “Knowledge” of a particular fact or other matter if any officer or individual identified on Exhibit N hereto has Knowledge of such fact or other matter.

“Legal Requirement” shall mean any applicable order, writ, injunction, judgment, decree, statute, rule or regulation of any Governmental Body.

“Liability” shall mean any debt, obligation, liability of any nature (including any unknown, undisclosed, unmatured, unaccrued, unasserted, contingent, indirect, conditional, derivative, joint, several or secondary liability), regardless of whether such debt, obligation or liability would be required to be disclosed on a balance sheet prepared in accordance with generally accepted accounting principles and regardless of whether such debt, obligation or liability is immediately due and payable.

“Litigation Matters” shall mean those matters set forth on Exhibit O hereto.

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“Lyne Contract” means that certain Manufacturing Agreement between Medicis Manufacturing Corporation, a wholly owned subsidiary of Medicis and Lyne Laboratories Incorporated effective as of March 15, 2004.

“Lyne License” shall mean that certain License Agreement between Ascent and Lyne Laboratories, Inc. dated May 21, 2001 (without regard to any amendment or modification thereof subsequent to the date hereof).

“Material Acquired Business Contract” means the CIMA Contracts and the Lyne Contract.

“Material Adverse Effect” With respect to Medicis, Medicis Manufacturing and/or Ascent, an “Ascent Material Adverse Effect” means any event, circumstance, condition, development or occurrence causing, resulting in or having a material adverse effect on Ascent, the Intellectual Property, or the Pediatrics Business, taken as a whole; provided that in no event shall any of the following be deemed to constitute or be taken into account in determining an Ascent Material Adverse Effect: any event, circumstance, change or effect that results from (A) changes affecting the economy generally, (B) changes in the pharmaceutical industry as a whole or in the market for oral liquid prednisolone solution products or oral dissolving tablet prednisolone products, (C) the public announcement or pending nature of the Transactions, or (D) any adverse judgment, verdict or Order relating to the Litigation Matters (provided that this clause (D) shall not restrict or modify the conditions set forth in Sections 6.1, 6.3 and 6.4). With respect to BioMarin and/or BioMarin Acquisition, a “BioMarin Material Adverse Effect” means any event, circumstance, condition, development or occurrence causing, resulting in or having a material adverse effect on the business, condition, capitalization, assets, liabilities, operations or financial performance of BioMarin, taken as a whole; provided that in no event shall any of the following be deemed to constitute or be taken into account in determining a BioMarin Material Adverse Effect: any event, circumstance, change or effect that results from (x) changes affecting the economy generally, (y) changes in the pharmaceutical industry as a whole, or (z) the public announcement or pending nature of the Transactions.

“Medicis Indemnitees” means Medicis, Medicis Manufacturing and Ascent.

“ORAPRED^®” means a product having the approved prednisolone sodium phosphate oral solution formulation, 15mg (base)/5ml as set forth under Abbreviated New Drug Application 75-117.

“Order” shall mean any order, judgment, injunction, decree, ruling, decision, opinion, verdict, sentence, writ or award issued, made, entered, rendered or otherwise put into effect by or under the authority of any court, administrative agency or other Governmental Body or any arbitrator or arbitration panel.

“Ordinary Course of Business” An action taken by or on behalf of Ascent or Medicis shall not be deemed to have been taken in the “Ordinary Course of Business” unless such action is regularly recurring in nature and is consistent with the past practices of Ascent or Medicis in the conduct of the Pediatrics Business.

A-5

“Permitted Encumbrances” shall mean (a) contractual rights of the other parties to the Acquired Business Contracts under the Acquired Business Contracts, and (b) Permitted Liens.

“Permitted Liens” shall mean liens for Taxes, assessments and other governmental charges which are not due and payable or which may hereafter be paid without penalty or which are being contested in good faith by appropriate proceedings.

“Person” shall mean any individual, Entity or Governmental Body.

“Pre-Closing Period” shall mean the period from the date of the Agreement through the Effective Time.

“Proceeding” shall mean any claim, action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Body or any arbitrator or arbitration panel.

“Products” shall mean any product or method made, used, imported, offered for sale, distributed or sold which, if in the course of such manufacture, use, importation, offer for sale, distribution or sale, would, in the absence of the License Agreement, infringe or misappropriate one or more of the Intellectual Property Assets.

“Representatives” shall mean officers, directors, employees, agents, attorneys, accountants, advisors and representatives.

“Subsidiary” shall mean with respect to any Person, any other Person (a) of which the initial Person directly or indirectly owns or controls more than 50% of the voting equity interests or has the power to elect or direct the election of a majority of the members of the governing body of such Person or (b) which is required to be consolidated with such Person under generally accepted accounting principles.

“Taste Masking Related Patents” shall mean all the United States and foreign patents and utility models, invention registrations, supplementary protection certificates and applications therefor listed in Part L-1.1(jjj) of the Ascent Disclosure Schedule and all reissues, divisionals, renewals, extensions, provisionals, continuations, and continuations-in-part thereof.

“Tax” shall mean any tax (including any income tax, franchise tax, capital gains tax, estimated tax, gross receipts tax, value added tax, surtax, excise tax, ad valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business tax, occupation tax, inventory tax, occupancy tax, withholding tax or payroll tax), levy, assessment, tariff, impost, imposition, toll, duty (including any customs duty), deficiency or fee, and any related charge or amount (including any fine, penalty or interest), that is, has been or may in the future be (a) imposed, assessed or collected by or under the authority of any Governmental Body, or (b) payable pursuant to any tax sharing agreement or similar Contract.

“Tax Return” shall mean any return (including any information return), report, statement, declaration, estimate, schedule, notice, notification, form, election, certificate or other document or information that is, has been or may in the future be filed with or submitted to, or required to

A-6

be filed with or submitted to, any Governmental Body in connection with the determination, assessment, collection or payment of any Tax or in connection with the administration, implementation or enforcement of or compliance with any Legal Requirement relating to any Tax.

“Technology” shall mean the Taste Masking Related Patents and the Know How.

“Trademarks” shall mean all business names, trade names, logos, common law trademarks and service trademarks, trademark and service mark registrations and applications therefor as set forth in Part L-1.1(oo) of the Ascent Disclosure Schedule.

“Transaction Agreements” shall mean: (a) this Agreement; (b) the Assumption Agreement; (c) the Transition Services Agreement; (d) the Supply Agreement; and (e) the transfer documents contemplated by Section 1.5(b)(i).

“Transactions” shall mean (a) the execution and delivery of the respective Transaction Agreements, and (b) all of the transactions contemplated by the respective Transaction Agreements, including: (i) the sale of the Acquired Assets to BioMarin Acquisition in accordance with this Agreement; and (ii) the assumption of the Assumed Liabilities by BioMarin Acquisition pursuant to the Assumption Agreement.

“Triumph Proceeding” shall mean that certain action brought by Triumph-Connecticut Limited Partnership and related parties against Ascent on November 9, 2001 in the Superior Court, Suffolk County of Massachusetts captioned Triumph Connecticut Limited Partnership et al. v. Ascent Pediatrics, Inc., Civil Action No. 01-5159-BLS2 and all Proceedings arising out of, in connection with or relating to such action.

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Other defined terms are located in the Agreement as follows:

Defined Term	Page No.
Acquired Assets	1
Acquired Business Contracts	2
Actual Inventory Value	4
Adjusted Acquired Assets Payment	2
Ascent	1
Ascent Breach	28
Assumed Liabilities	2
Assumption Agreement	4
Bill of Sale	4
BioMarin	1
BioMarin Acquisition	1
BioMarin Breach	28
BioMarin Cap	31
BioMarin/Medicis CDA	24
Business Employee Benefits Plan	15
Business Employees	14
Closing	3
Closing Date	3
Closing Inventory Statement	4
COBRA	16
Confidentiality Agreement	26
Effective Time	3
Enforceability Exception	6
Escrow Agreement	25
Estimated Inventory Value	4
Excluded Liabilities	3
FDA	9
FDCA	9
KPMG	4
License Agreement	25
Medicis	1
Medicis Cap	30
Obligations	39
Pediatrics Business	1
Pediatrics Business Returns	13
Purchase Price Allocation	24
Purchased Inventory	1
Securities Purchase Agreement	26
Security Agreement	26
Supply Agreement	3
Termination Date	28
Third Party Claim	32
Transferred Employees	23

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Transition Services Agreement	3
WARN Act	15

A-9

The following exhibits and schedules are omitted in reliance upon Item 601(b)(2) of Regulation S-K. The Registrant will supplementally furnish a copy of such omitted schedules and exhibits to the Securities and Exchange Commission upon its request.

Schedule 1.1(b) - Tangible Assets

Schedule 1.1(d) - Acquired Business Contracts

Schedule 1.2(b) - Purchase Orders

Ascent Disclosure Schedule

Exhibit B -Form of Transition Services Agreement

Exhibit C - Form of Supply Agreement

Exhibit D - Form of Bill of Sale

Exhibit E - Form of Assumption Agreement

Exhibit F - List of Employees in Addition to Business Employees

Exhibit G - Purchase Price Allocation

Exhibit H - Form of Opinion from Akin Gump

Exhibit I - Form of Escrow Agreement

Exhibit J - Form of License Agreement

Exhibit K - Form of Securities Purchase Agreement

Exhibit L - Form of Opinion of Paul Hastings

Exhibit M - Medicis and Ascent Knowledge

Exhibit N - BioMarin and BioMarin Acquisition Knowledge

Exhibit O - Litigation Matters

EX-2.2

Exhibit 2.2

SECURITIES PURCHASE AGREEMENT

among

MEDICIS PHARMACEUTICAL CORPORATION,

a Delaware corporation,

ASCENT PEDIATRICS, INC.,

a Delaware corporation,

BIOMARIN PHARMACEUTICAL INC.,

a Delaware corporation

and

BIOMARIN PEDIATRICS INC.,

a Delaware corporation

Dated as of May 18, 2004

TABLE OF CONTENTS

			Page
1.	OPTION TO ACQUIRE ASCENT		1
	1.1	Option Grant	1
	1.2	Option Exercise	1
	1.3	Option Exercise Price	3
	1.4	Option Closing	4
	1.5	Escrow for Discovered Liabilities	5
	1.6	Alternative Structure	6
2.	REPRESENTATIONS AND WARRANTIES OF MEDICIS		6
	2.1	Due Organization; No Subsidiaries; Etc	6
	2.2	Capitalization	7
	2.3	Authority; Binding Nature of Agreements	7
	2.4	Governmental and Other Authorizations	7
	2.5	Non-Contravention; Consents	7
	2.6	Title to Option Shares; Acquisition Transaction	8
	2.7	Liabilities	8
	2.8	Tax Matters	8
	2.9	Proceedings; Orders	10
	2.10	Fraudulent Transfers	10
	2.11	Real Property	10
	2.12	Investment Banking Fees	10
	2.13	Investment Representations of Medicis	10
	2.14	Compliance with Legal Requirements	12
3.	REPRESENTATIONS AND WARRANTIES OF BIOMARIN AND BIOMARIN ACQUISITION		12
	3.1	Due Organization; Etc	12
	3.2	Capitalization	12
	3.3	Authority; Binding Nature of Agreements	13
	3.4	Governmental and Other Authorizations	13
	3.5	Non-Contravention	13
	3.6	Filings with the Commission	13

i

TABLE OF CONTENTS

(continued)

			Page
	3.7	Liabilities	14
	3.8	Compliance with Legal Requirements	14
	3.9	Proceedings; Orders	14
	3.10	Fraudulent Transfers	15
	3.11	Investment Banking Fees	15
	3.12	Nasdaq Listing Compliance	15
	3.13	Investment Representations of BioMarin	15
	3.14	Absence of Changes	16
4.	OTHER AGREEMENTS		16
	4.1	Operation of Medicis and Ascent	16
	4.2	Operation of BioMarin and BioMarin Acquisition	19
	4.3	No Disposition or Encumbrance of Option Shares	19
	4.4	Access and Investigation	19
	4.5	Notification	20
	4.6	Noncompetition by Medicis	20
	4.7	Public Announcements	20
	4.8	Registration of Shares	21
	4.9	Additional Tax Matters	25
	4.10	Update of “Knowledge” Definition	26
	4.11	Confidentiality	26
	4.12	Reasonable Efforts; Filings and Consents	26
5.	CONDITIONS PRECEDENT TO BIOMARIN ACQUISITION’S OBLIGATION TO EXERCISE OPTION		26
	5.1	Accuracy of Representations	26
	5.2	Consents and Governmental Approvals	27
	5.3	No Restraints	27
	5.4	Performance of Obligations	27
	5.5	Additional Documents	27
	5.6	Release	27

ii

TABLE OF CONTENTS

(continued)

			Page
6.	CONDITIONS PRECEDENT TO MEDICIS’ OBLIGATION TO CLOSE		28
	6.1	Accuracy of Representations	28
	6.2	Consents and Governmental Approvals	28
	6.3	No Restraints	28
	6.4	Performance of Obligations	28
	6.5	Additional Documents; Payments	28
7.	TERMINATION		29
	7.1	Termination Events	29
	7.2	Termination Procedures	29
	7.3	Effect of Termination	29
8.	SURVIVAL AND INDEMNIFICATION		29
	8.1	Survival of Representations and Covenants	29
	8.2	Indemnification by Medicis	30
	8.3	Indemnification by BioMarin	31
	8.4	Procedures Relating to Indemnification for Third Party Claims	33
	8.5	Other Claims	34
	8.6	Settlements	34
	8.7	No Consequential or Punitive Damages	34
9.	MISCELLANEOUS PROVISIONS		34
	9.1	Further Assurances	34
	9.2	Fees and Expenses; Investment Banking Fees	35
	9.3	Attorneys’ Fees	35
	9.4	Notices	35
	9.5	Time of the Essence	37
	9.6	Headings	37
	9.7	Counterparts	37
	9.8	Governing Law; Venue	37
	9.9	Dispute Resolution Procedures	38
	9.10	Successors and Assigns; Parties In Interest	38
	9.11	Exclusive Remedies; Specific Performance	38
	9.12	Waiver	39

iii

TABLE OF CONTENTS

(continued)

		Page
9.13	Amendments	39
9.14	Severability	39
9.15	Entire Agreement	39
9.16	Performance Guarantee	39
9.17	Construction	40
9.18	Consistency	41
9.19	NO PROJECTION OR FINANCIAL FORECAST	41
9.20	Noncompetition by BioMarin	41

iv

SECURITIES PURCHASE AGREEMENT

This Securities Purchase Agreement is entered into as of May 18, 2004 (the “Effective Date”), by and among Medicis Pharmaceutical Corporation, a Delaware corporation (“Medicis”), Ascent Pediatrics, Inc., a Delaware corporation (“Ascent”), BioMarin Pharmaceutical Inc., a Delaware corporation (“BioMarin”), and BioMarin Pediatrics Inc., a Delaware corporation and wholly-owned subsidiary of BioMarin (“BioMarin Acquisition”). Capitalized terms used in this Agreement are defined herein and in Exhibit A.

RECITALS

WHEREAS, Medicis owns, of record and beneficially, all of the issued and outstanding capital stock of Ascent; and

WHEREAS, Medicis desires to grant to BioMarin Acquisition an option to purchase all of the issued and outstanding capital stock of Ascent, pursuant to and subject to the terms of this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

1. OPTION TO ACQUIRE ASCENT.

1.1 Option Grant. Medicis hereby grants to BioMarin Acquisition an exclusive option (the “Option”) to acquire good and valid title to all of the issued and outstanding shares of capital stock of Ascent, free and clear of all Encumbrances (the “Option Shares”), the purchase and sale of which shall be pursuant to the terms and conditions of this Agreement.

1.2 Option Exercise.

(a) The Option shall be exercised by BioMarin Acquisition and concurrently therewith the purchase and sale of the Option Shares shall occur, subject to Section 1.2(b), (c), (d), (e), and 1.5(b) on the later of August 17, 2009 (the “Target Closing Date”), or the fifth (5th) Business Day after the last of the conditions set forth in Article 5 and Article 6 shall have been satisfied or waived, except for conditions which by their terms must be satisfied as of the date of consummation of the purchase and sale of the Option Shares (the “Option Closing Date”); provided, however, that if the aggregate number of prescriptions for products with an equivalent or greater economic value per prescription using ORAPRED^®, oral liquid prednisolone solution products and oral dissolving tablet prednisolone products that are sold by BioMarin Acquisition or its Affiliates or licensees during the period from, April 1, 2008 to March 31, 2009 exceeds 150% of the aggregate number of prescriptions for products using ORAPRED^®, oral liquid prednisolone solution products and oral dissolving tablet prednisolone products that were sold by Medicis, Ascent or their Affiliates or licensees during the twelve month period ending on March 31, 2004, as reported by IMS Health Incorporated, then BioMarin Acquisition may elect, in its sole and absolute discretion, not to exercise the Option, in which case it shall deliver to Medicis, on or prior to the Option Closing Date, a notice that it declines to exercise the Option (the

“Notice of Non-Exercise”). The Notice of Non-Exercise shall be given by the delivery of written notice to such effect to Medicis on or before the Option Closing Date.

(b) Medicis may, in its sole discretion, accelerate the Option Closing Date if BioMarin Acquisition fails to timely make any License Payment or Contingent Payments Reimbursement Payment (as such terms are defined in the License Agreement) pursuant to the terms of the License Agreement and such failure is not cured within twenty (20) Business Days of the due date thereof, including the payment of accrued interest. If Medicis elects to accelerate the Option Closing Date pursuant to this Section 1.2(b): (i) Medicis shall deliver notice of such election (a “Notice of Acceleration”) to BioMarin Acquisition within sixty (60) days of the end of the cure period specified in the immediately preceding sentence; and (ii) the Option Closing Date shall occur twenty (20) Business Days after receipt by BioMarin Acquisition of the Notice of Acceleration and the Option Closing shall occur on such Option Closing Date in accordance with Section 1.4. BioMarin’s right to deliver a Notice of Non-Exercise pursuant to Section 1.2(a) shall immediately terminate upon receipt of a Notice of Acceleration from Medicis delivered in accordance herewith.

(c) BioMarin Acquisition may, in its sole discretion, accelerate the Option Closing Date if either Ascent or Medicis is in material Breach of any its obligations under the License Agreement and BioMarin Acquisition gives Medicis written notice of such Breach, specifying in reasonable detail the particulars of the alleged Breach, and such Breach has not been cured within twenty (20) Business Days after Medicis’ receipt of such notice. If BioMarin Acquisition elects to accelerate the Option Closing Date pursuant to this Section 1.2(c): (i) BioMarin Acquisition shall deliver a Notice of Acceleration to Medicis within sixty (60) days of the end of the cure period specified in the immediately preceding sentence; and (ii) the Option Closing Date shall occur twenty (20) Business Days after receipt by Medicis of the Notice of Acceleration and the Option Closing shall occur on such Option Closing Date in accordance with Section 1.4; provided, however, that the payment of the Cash Option Payment by BioMarin Acquisition to Medicis pursuant to Section 1.4(b)(ii) and the delivery of the BioMarin Payment Shares by BioMarin to Medicis pursuant to Section 1.4(b)(iii) shall not occur until the Target Closing Date.

(d) In the event that a case is commenced by or against Ascent to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or there is appointed a trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) with respect to Ascent or with respect to all or any substantial part of its properties or assets, or Ascent makes an assignment for the benefit of creditors, or Ascent admits in writing its inability to pay its debts generally as they become due, or Ascent declares or effects a moratorium on its debt or takes any corporate action in furtherance of any of the foregoing, then BioMarin Acquisition may, in its sole discretion, accelerate the Option Closing Date. If BioMarin Acquisition elects to accelerate the Option Closing Date pursuant to this Section 1.2(d): (i) BioMarin Acquisition shall deliver a Notice of Acceleration to Medicis within sixty (60) days of any filing, consent, admission, declaration or action specified in the immediately preceding sentence; and (ii) the Option Closing Date shall occur twenty (20) Business Days after receipt by Medicis of the Notice of Acceleration and the Option Closing shall occur on such Option Closing Date in accordance with Section 1.4; provided, however, that the payment of the Cash Option Payment by BioMarin Acquisition to Medicis pursuant to

2

Section 1.4(b)(ii) and the delivery of the BioMarin Payment Shares by BioMarin to Medicis pursuant to Section 1.4(b)(iii) shall not occur until the Target Closing Date.

(e) In the event that a case is commenced by or against Medicis to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or there is appointed a trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) with respect to Medicis or with respect to all or any substantial part of its properties or assets, or Medicis makes an assignment for the benefit of creditors, or Medicis admits in writing its inability to pay its debts generally as they become due, or Medicis declares or effects a moratorium on its debt or takes any corporate action in furtherance of any of the foregoing, then the Option Closing Date shall automatically accelerate to the date immediately prior to any such commencement, filing, consent, appointment, admission, declaration or action. If the Option Closing Date is accelerated pursuant to this Section 1.2(e) the parties shall immediately make the payments and deliveries specified in Section 1.4(b); provided, however, that the payment of the Cash Option Payment by BioMarin Acquisition to Medicis pursuant to Section 1.4(b)(ii) and the delivery of the BioMarin Payment Shares by BioMarin to Medicis pursuant to Section 1.4(b)(iii) shall not occur until the Target Closing Date.

1.3 Option Exercise Price. The aggregate consideration for the Option Shares shall be Eighty Two Million Dollars ($82,000,000) payable as follows:

(a) Sixty Two Million Dollars ($62,000,000) (the “Cash Option Payment”), payable in cash at the Option Closing;

(b) Twenty Million ($20,000,000), payable at the Option Closing in that number of shares of BioMarin Common Stock with an aggregate value, as of the Option Closing Date, of Twenty Million Dollars ($20,000,000), as measured by the average closing sales price per share of BioMarin Common Stock over the twenty trading days immediately preceding the Option Closing Date (or to the extent the Option Closing Date is accelerated pursuant to Section 1.2(c), (d) or (e), as measured by the average closing sales price per share of BioMarin Common Stock over the twenty (20) trading days immediately preceding the Target Closing Date) (the “BioMarin Payment Shares”); provided, however, (i) if BioMarin is unable to deliver such BioMarin Payment Shares at the Option Closing, (ii) if BioMarin determines that the representations and warranties in Section 3.12 or 3.14 are not accurate as of the Option Closing Date, or (iii) the registration statement for BioMarin Payment Shares described in Section 4.8(a) is not effective on the Option Closing Date, then in cash (and, in such event, BioMarin shall have no further obligation under Section 4.8); and

(c) In the event that the Option Closing Date is accelerated pursuant to Section 1.2(b), (c), (d) or (e), the aggregate consideration for the Option Shares shall be increased by an amount equal to the then remaining unpaid License Payments and Contingent Payments Reimbursement Payments (each as defined in the License Agreement) payable under the License Agreement (the “Additional Consideration”). For avoidance of doubt, upon the Option Closing Date, neither Medicis nor Ascent shall have any rights in or be entitled to receive any remaining License Payments (as defined on the License Agreement) or Contingent Payments Reimbursement Payments (as defined in the License Agreement) payable or that become payable under the License Agreement.

3

1.4 Option Closing.

(a) The closing of the sale of the Option Shares to BioMarin Acquisition (the “Option Closing”) shall take place at the offices of Paul, Hastings, Janofsky & Walker LLP, Twenty-Fourth Floor, 55 Second Street, San Francisco, California, at 10:00 a.m. on the Option Closing Date.

(b) At the Option Closing:

(i) Medicis shall execute and deliver to BioMarin Acquisition a certificate or certificates evidencing the Option Shares, properly endorsed for transfer or with stock powers authorizing the transfer of the Option Shares duly and validly executed in blank attached or otherwise in proper form for transfer to BioMarin Acquisition, together with such other documents as BioMarin Acquisition may reasonably request to evidence the transfer to BioMarin Acquisition of good and valid title to the Option Shares, free and clear of all Encumbrances;

(ii) BioMarin Acquisition shall pay to Medicis the Cash Option Payment by wire transfer of immediately available funds, to an account designated by Medicis not less than five (5) Business Days prior to the Option Closing Date; provided, however, that in the event that the Option Closing Date is accelerated pursuant to Section 1.2(c), (d) or (e), the payment of the Cash Option Payment shall not occur until the Target Closing Date;

(iii) BioMarin shall deliver to Medicis a certificate or certificates evidencing the BioMarin Payment Shares, each of which shall be registered in the name of Medicis; provided, however, that in the event that the Option Closing Date is accelerated pursuant to Section 1.2(c), (d) or (e), the delivery of the BioMarin Payment Shares shall not occur until the Target Closing Date;

(iv) Medicis shall deliver to BioMarin Acquisition all legal analyses and opinions prepared for and in the name of Ascent related to the Technology that are in the control and possession of Ascent;

(v) In the event that the Option Closing Date is accelerated pursuant to Section 1.2(b), (c), (d) or (e), BioMarin Acquisition shall pay to Medicis, by wire transfer of immediately available funds, to an account designated by Medicis not less than five (5) Business Days prior to the Option Closing Date, an amount equal to the Additional Consideration; and

(vi) In the event that the Option Closing Date is accelerated pursuant to Section 1.2(b), (c), (d) or (e) prior to the termination of that certain Escrow Agreement dated May 18, 2004 among BioMarin, BioMarin Acquisition, Ascent and U.S. Bank, National Association, the parties shall, upon payment by BioMarin or BioMarin Acquisition to Medicis of the amounts due to Medicis under Section 1.4(b)(v), immediately deliver joint instructions to U.S. Bank, National Association to terminate such Escrow Agreement and release all remaining Escrow Assets (as defined in such Escrow Agreement) to BioMarin Acquisition.

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1.5 Escrow for Discovered Liabilities.

(a) If, prior to the Option Closing Date, Medicis becomes aware of any actual or potential Liability (including, without limitation, Third Party Claims) of Ascent, except any Third Party Claim arising from the conduct or operation of making, manufacturing, marketing, selling, distributing, importing, exporting and developing of the Products, following the Effective Date, except Damages suffered or incurred or arising from the Breach of Medicis, Ascent or Medicis Manufacturing, as applicable, under the Supply Agreement, the Transition Services Agreement or the License Agreement (“Ascent Liability”), then (i) at least ninety (90) days prior to the Option Closing Date for each Ascent Liability of which Medicis becomes aware prior to such ninety-day period, and (ii) within at least two (2) Business Days for each Ascent Liability of which Medicis becomes aware during such ninety-day period, Medicis shall notify (the “Liabilities Notice”) BioMarin Acquisition of such Ascent Liability.

(b) BioMarin Acquisition shall have the right to conduct an investigation into such Ascent Liabilities and the amount thereof and Medicis shall afford BioMarin Acquisition such access and assistance as BioMarin Acquisition may reasonably request as permitted under Section 4.4. If any Liabilities Notice describes any Proceeding, Medicis will deliver or make available to BioMarin Acquisition accurate and complete copies of all pleadings (to which Medicis or Ascent has access) that relate to such Proceedings. The senior executives of both Medicis and BioMarin Acquisition shall attempt in good faith, within five (5) Business Days of receipt by BioMarin Acquisition of the Liabilities Notice (the “Resolution Period”), to agree upon a reasonable estimate of the potential Damages that BioMarin Acquisition would incur as a result of such Ascent Liabilities if the Option Closing were consummated (the “Estimated Damages”). If at the conclusion of the Resolution Period the parties have not reached an agreement on the Estimated Damages, then Medicis and BioMarin Acquisition shall engage an independent Entity expert in the type of Liability that is the subject of the dispute (the “Independent Appraiser”) within five (5) Business Days of the end of the Resolution Period to determine the Estimated Damages. Each party agrees to execute, if requested by the Independent Appraiser, a reasonable engagement letter. The determination of the Independent Appraiser of the Estimated Damages shall be made within sixty (60) days after its engagement, shall be set forth in a written statement delivered to Medicis and BioMarin Acquisition and shall be final, binding, conclusive and nonappealable solely for the purpose of determining the amount of the Estimated Damages under this Section 1.5. If the Option Closing Date would occur prior to the final determination of the Estimated Damages, the Option Closing Date shall be delayed until two (2) Business Days after such final determination. For purposes of this Section 1.5(b), the Independent Appraiser will not be considered “independent” if (A) it would not meet the independence requirements set forth in Section 2-01(c) of Regulation S-X promulgated under the Exchange Act, except substituting “Independent Appraiser” for “accountant” and “a party” for “an audit client” as used therein, or (B) has been retained by either of the parties within the preceding twelve month period.

(c) The amount of the Estimated Damages as determined pursuant to the procedures set forth in Section 1.5(b) shall be deducted from the Option Shares deliverable at the Option Closing and the Cash Option Payment payable at the Option Closing in the ratio of 20% of the Estimated Damages in Option Shares and 80% of the Estimated Damages in Cash Option Payment (the “Escrow Cash”). The number of shares to be deducted from the Option Shares

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(the “Escrow Shares”) shall be that number of BioMarin Shares (up to the total number of Option Shares) with an aggregate value equal to 20% of the Estimated Damages, as of the Option Closing Date, as measured by the average closing sales price per BioMarin Share over the twenty (20) trading days immediately preceding the Option Closing Date (such average closing sales price, as such amount shall be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends and similar events, being referred to as the “Escrow Share Price”). The Escrow Shares and the Escrow Cash shall be deposited on the Option Closing Date with an escrow agent mutually agreeable to the parties and on terms and conditions substantially as set forth in the escrow agreement attached hereto as Exhibit B (the “Escrow Agreement”). From and after the Option Closing Date, if BioMarin Acquisition incurs any Damages in connection with any Ascent Liability, the Escrow Shares (valued at the Escrow Share Price) and the Escrow Cash shall be released to BioMarin Acquisition in the ratio of 20% of the Damages in Escrow Shares and 80% of the Damages in Escrow Cash in satisfaction of such Damages up to the amounts released from escrow. If after the Option Closing Date, BioMarin Acquisition and Medicis agree in writing that the Ascent Liabilities cease to exist, then the parties shall cause any Escrow Shares and Escrow Cash not released to BioMarin in satisfaction of Damages to be released to Medicis. Nothing contained in this Section 1.5 shall be deemed to limit or restrict the rights of any BioMarin Indemnitee to pursue indemnification under Section 8.2. Nothing herein shall be deemed an admission of liability as to any Third Party by any party hereto with respect to any Ascent Liability. The parties hereto agree that the receipt by a BioMarin Indemnitee of Escrow Shares shall be treated as satisfaction of Damages as of the date of receipt thereof in an amount equal to the product of the number of Escrow Shares received and the Escrow Share Price.

1.6 Alternative Structure. In the event that any of the conditions set forth in Article 5 are not satisfied on or prior to a date not later than 180 days prior to the sixth anniversary of the Effective Date, the parties shall agree to and promptly thereafter shall consummate an alternative structure for the transactions contemplated hereby so as to achieve the same result as contemplated by this Agreement. For example, the parties shall consider a sale of good and valid title to all of the assets of Ascent to BioMarin Acquisition free and clear of all Encumbrances.

2. REPRESENTATIONS AND WARRANTIES OF MEDICIS.

Medicis represents and warrants as of the Effective Date and as of the Option Closing Date, to and for the benefit of BioMarin and BioMarin Acquisition, that each of the following representations and warranties is true and correct.

2.1 Due Organization; No Subsidiaries; Etc. Each of Medicis and Ascent is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Ascent is qualified, authorized, registered or licensed to do business as a foreign corporation in each jurisdiction where its business requires such qualification, except where the failure to be so qualified, authorized, registered or licensed would not have an Ascent Material Adverse Effect. Medicis has delivered to (or made available for inspection by) BioMarin Acquisition accurate and complete copies of the certificate of incorporation and bylaws of Ascent, including all amendments thereto. Ascent has no Subsidiaries and does not hold any securities of any other Entity.

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2.2 Capitalization. The authorized capital stock of Ascent consists solely of (i) 60,000,000 shares of common stock, $0.0004 par value per share (the “Ascent Common Stock”), and (ii) 5,000,000 shares of preferred stock, $0.01 par value per share, none of which are issued and outstanding. Subject to a reverse stock split as permitted under Section 4.1(a)(viii), there are 20,000,000 shares of Ascent Common Stock issued and outstanding. All of the issued and outstanding shares of capital stock of Ascent are owned of record and beneficially, solely by Medicis and all such outstanding shares are duly authorized, validly issued, fully paid and nonassessable. Such shares were issued in compliance with Federal securities laws and applicable state securities laws. None of such outstanding shares are subject to any Encumbrance of any kind. There are no restrictions on or contractual or other provisions affecting the ability of Medicis to vote such outstanding shares or to sell such shares pursuant to this Agreement. There are no outstanding options, warrants, rights (including conversion or preemptive rights or stock appreciation rights or rights to participate in Ascent’s profits) or agreements for the purchase or acquisition from Ascent of any shares of its capital stock.

2.3 Authority; Binding Nature of Agreements. Each of Ascent and Medicis has all corporate power and authority to enter into and to perform its obligations under this Agreement. The execution, delivery and performance by each of Ascent and Medicis of this Agreement have been duly authorized by all necessary action on the part of each of Ascent and Medicis and its stockholders, board of directors and officers. This Agreement, assuming the due authorization, execution and delivery by the other parties hereto, constitutes the legal, valid and binding obligation of each of Ascent and Medicis enforceable against it in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereinafter in effect relating to creditors’ rights generally or to general principles of equity (the “Enforceability Exception”).

2.4 Governmental and Other Authorizations. The execution and delivery of this Agreement and the consummation or performance by Medicis of its obligations hereunder:

(a) do not require any approval of any Governmental Body on the part of Medicis or any material consent, waiver or approval of any other Person on the part of Medicis, other than the filing of a report and notification pursuant to the HSR Act and the expiration of all waiting periods thereunder; and

(b) as of the date of this Agreement, do not give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate or modify, any Governmental Authorization that is part of the Intellectual Property.

2.5 Non-Contravention; Consents. The execution and delivery of this Agreement and the consummation or performance by Medicis or Ascent, as applicable, of their respective obligations hereunder, do not and will not (a) contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any loan, credit or note agreement, mortgage, security agreement, promissory note, license or other agreement to which Medicis or Ascent is bound or affected, the contravention or conflict with or violation of which would have an Ascent Material Adverse Effect, (b) contravene or conflict with the certificate of incorporation or bylaws of Medicis or Ascent, or (c) contravene, conflict with or result in a violation of any Legal Requirement or any Order to which Medicis is subject, the contravention

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or conflict with or violation of which would have an Ascent Material Adverse Effect, or to which Ascent or any of the Intellectual Property is subject.

2.6 Title to Option Shares; Acquisition Transaction.

(a) Except as set forth in Part 2.6(a) of the Ascent Disclosure Schedule, Ascent has good and valid title to all of the Intellectual Property and the Development Technology.

(b) None of the Intellectual Property or the Development Technology is subject to any Encumbrance other than Permitted Encumbrances and the Supply Agreement as of the Effective Date and the Permitted Encumbrances as of the Option Closing Date.

(c) Medicis has good and valid title to all of the Option Shares, and none of the Option Shares is subject to any Encumbrance, and, on the Option Closing Date, Medicis will transfer to BioMarin Acquisition good and valid title to all of the Option Shares, free and clear of any and all Encumbrances.

(d) Except for the License Agreement and the Lyne License, none of Medicis, Ascent or any of their Affiliates has any agreement, absolute or contingent, written or oral, with any other Person to effect any Acquisition Transaction.

2.7 Liabilities.

(a) Neither Medicis nor Ascent has, since November 15, 2001 (i) made a general assignment for the benefit of creditors, (ii) filed, or had filed against it, any bankruptcy petition or similar filing, (iii) suffered the attachment or other judicial seizure of all or a substantial portion of its assets, (iv) admitted in writing its inability to pay its debts as they become due, or (v) been convicted of, or pleaded guilty or no contest to, any felony.

(b) As of the Option Closing Date, Ascent will have no assets or properties, other than the assets and properties licensed under the License Agreement and the Secondary ANDA, and will have no Liabilities (including for Taxes), except Liabilities that may have arisen as a direct result of the Breach of BioMarin Acquisition of its obligations under the License Agreement. As of the Option Closing Date, Ascent will not have any employees or independent contractors. As of the Option Closing Date, neither Medicis nor Ascent will be in material Breach of any of the terms and conditions of the License Agreement.

2.8 Tax Matters.

(a) All material Tax Returns required to be filed by or on behalf of Ascent with any Governmental Body with respect to any taxable period ending on or before the Option Closing Date have been or will be filed on or before the applicable due date (including any extensions of such due date). The information contained in such Tax Returns is accurate and complete in all material respects. All amounts shown on such Tax Returns to be due on or before the Option Closing Date have been or will be paid on or before the Option Closing Date. Medicis has delivered to (or made available for inspection by) BioMarin Acquisition accurate

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and complete copies of all material Tax Returns that have been filed by or on behalf of Ascent since December 31, 2002.

(b) There are no liens for Taxes upon any of the Intellectual Property or Secondary ANDA, except liens for current Taxes not yet due and payable. No extension or waiver of the limitation period applicable to any of the Tax Returns has been granted (by Ascent or any other Person), and no such extension or waiver has been requested from Ascent other than an extension resulting from the filing of a Tax Return after its due date in the Ordinary Course of Business. Ascent has not entered into a closing agreement pursuant to Section 7121 of the Code, or any predecessor provisions thereof or any similar provision of state or other law. No claim or Proceeding is pending or, to the Knowledge of Ascent and Medicis, has been threatened against or with respect to Ascent in respect of any material Tax.

(c) On the Option Closing Date, no powers of attorney or other authorizations will be in effect that grant to any Person the authority to represent Ascent in connection with any Tax matter or Proceeding.

(d) Medicis, with respect to the Pediatrics Business, and Ascent have properly withheld and paid all material Taxes required to be withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.

(e) Ascent is not, nor has ever been, a party to or bound by any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar Contract, including any obligation arising by reason of Treasury Regulations Section 1.1502-6, and Ascent has not or, by reason of the consummation of the transactions contemplated hereby, will not have any liability or obligation under any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar Contract.

(f) None of the Intellectual Property is subject to, or constitutes, a safe harbor lease within the meaning of former Section 168(f) of the Code.

(g) There is no proposal for increasing the assessed value of any of the Intellectual Property or Secondary ANDA for Tax purposes and there are no pending Proceedings or public improvements which would result in the levy of any material special Tax or assessment against any of such assets.

(h) Neither Medicis nor Ascent is a “foreign person” within the meaning of Section 1445 of the Code.

(i) Ascent has never been a “reporting corporation” subject to the information and reporting and record maintenance requirements of Section 6038A and the regulations thereunder.

(j) Medicis with respect to the Pediatrics Business and Ascent have collected all material sales, use and value added Taxes required to be collected, and have remitted, or will remit on a timely basis, such amounts to the appropriate Governmental Body and have furnished properly completed exemption certificates for all exempt transactions.

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(k) Except as set forth in Part 2.8(k) of the Ascent Disclosure Schedule, neither Medicis with respect to the Pediatrics Business nor Ascent has been, and neither Medicis with respect to the Pediatrics Business nor Ascent will be, required to include any material adjustment in taxable income for any Tax period (or portion thereof) pursuant to Section 481 or 263A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions or events occurring, or accounting methods employed, prior to the Option Closing Date.

2.9 Proceedings; Orders. Except as set forth in Part 2.9 of the Ascent Disclosure Schedule, there is no pending Proceeding, and to the Knowledge of Ascent and Medicis, no Person has threatened to commence any Proceeding involving (a) Ascent or the Intellectual Property or the Pediatrics Business; or (b) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, any of the transactions contemplated hereby. To the Knowledge of Ascent and Medicis, no event has occurred, and no claim, dispute or other condition or circumstance exists, that would reasonably be expected to give rise to or serve as a basis for the commencement of any such Proceeding. Except as set forth in Part 2.9 of the Ascent Disclosure Schedule, to the Knowledge of Ascent and Medicis, there is no Order to which Ascent or any of the Intellectual Property or the Pediatrics Business is subject.

2.10 Fraudulent Transfers. Medicis is not insolvent, nor will be rendered insolvent by any of the transactions contemplated hereby. Immediately after the Option Closing, (i) Medicis will be able to pay its debts as they become due, and (ii) Medicis will not have unreasonably small assets with which to conduct its present or proposed business. As used in this Section 2.10, “insolvent” means that the sum of the Person’s assets does not and will not exceed its debts and other liabilities at a fair valuation.

2.11 Real Property. Ascent does not own any real property or lease any material real property.

2.12 Investment Banking Fees. None of Medicis, Ascent or any of their Affiliates has incurred any investment banking, broker or finder fees that will become the responsibility of BioMarin or BioMarin Acquisition before or after the Effective Date.

2.13 Investment Representations of Medicis. With respect to the BioMarin Payment Shares acquired by Medicis pursuant to this Agreement:

(a) Medicis will acquire such BioMarin Payment Shares for investment purposes only, for its own account and not as nominee or agent for any other Person and not with a view to or for resale in connection with any distribution thereof within the meaning of the Securities Act.

(b) Medicis knows of no public solicitation or advertisement of an offer in connection with such BioMarin Payment Shares.

(c) Medicis has had the opportunity to ask questions of and receive answers from BioMarin concerning the terms and conditions of the BioMarin Payment Shares. Medicis has received all information that it has requested regarding BioMarin and believes that such

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information is sufficient to make an informed decision with respect to the acquisition of the BioMarin Payment Shares.

(d) Medicis is able to bear the economic risk of its investment in the BioMarin Payment Shares and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of and protecting its interests with respect to its investment in the BioMarin Payment Shares. Medicis is aware of the risk involved in its investment in the BioMarin Payment Shares and has determined that such investment is suitable for Medicis in light of its financial circumstances and available investment opportunities.

(e) Medicis is and will be an “accredited investor” as that term is defined in Rule 501 of Regulation D promulgated under the Securities Act.

(f) Medicis hereby further agrees with BioMarin that the instruments or certificates evidencing the BioMarin Payment Shares and each instrument or certificate issued in transfer thereof will bear the following legend:

“The securities evidenced by this certificate have not been registered under the Securities Act of 1933 and have been taken for investment purposes only and not with a view to the distribution thereof, and, except as stated in an agreement between the holder of this certificate or its predecessor in interest, and the issuer corporation, such securities may not be sold or transferred unless there is an effective registration statement under such Act covering such securities or the issuer corporation receives an opinion, in form and content reasonably satisfactory to the issuer corporation, of counsel reasonably acceptable to the issuer corporation (which may be counsel for the issuer corporation) stating that such sale or transfer is exempt from the registration and prospectus delivery requirements of such Act.”

(g) The instruments or certificates representing the BioMarin Payment Shares and each instrument or certificate issued in transfer thereof will also bear any legend required under any applicable state securities law.

(h) Prior to any proposed sale, assignment, transfer or pledge of any of the BioMarin Payment Shares by Medicis, unless there is in effect a registration statement under the Securities Act covering the proposed transfer, Medicis shall give written notice to BioMarin of Medicis’ intention to effect such transfer, sale, assignment or pledge. Each such notice shall describe the manner and circumstances of the proposed transfer, sale, assignment or pledge in sufficient detail and shall be accompanied, at Medicis’ expense, by an unqualified written opinion of legal counsel, who shall and whose legal opinion shall be reasonably satisfactory to BioMarin (which may be counsel for BioMarin), addressed to BioMarin, to the effect that the proposed transfer of the BioMarin Payment Shares may be effected without registration under the Securities Act, whereupon Medicis shall be entitled to transfer such BioMarin Payment Shares in accordance with the terms of the notice delivered by Medicis to BioMarin.

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(i) Medicis consents to BioMarin’s making a notation on its records or giving instructions to any transfer agent of the BioMarin Payment Shares in order to implement the restrictions on transfer of the BioMarin Payment Shares.

(j) Medicis is aware that the BioMarin Payment Shares will be issued and sold in reliance on an exemption from the registration requirements of the Securities Act and that such exemption is expressly conditioned on the accuracy of the representations and warranties contained in this Section 2.13.

(k) Medicis is not a company established solely to acquire the BioMarin Payment Shares.

2.14 Compliance with Legal Requirements. Ascent is in compliance with each Legal Requirement that is applicable to it or to the conduct of its business or the ownership or use of any of its assets, except to the extent any such noncompliance, individually or in the aggregate, would not reasonably be expected to have an Ascent Material Adverse Effect. To the Knowledge of Medicis and Ascent, no event has occurred, and no condition or circumstance exists, that could (with or without notice or lapse of time) constitute or result in a violation by Medicis or Ascent of, or a failure on the part of Ascent to comply with, any Legal Requirement, except to the extent any such noncompliance, individually or in the aggregate, would not reasonably be expected to have an Ascent Material Adverse Effect. Neither Medicis nor Ascent has received any notice or other communication (in writing or otherwise) from any Governmental Body or any other Person regarding any actual or alleged violation of, or failure to comply with, any Legal Requirement that would reasonably be expected to have an Ascent Material Adverse Effect.

3. REPRESENTATIONS AND WARRANTIES OF BIOMARIN AND BIOMARIN ACQUISITION.

Each of BioMarin and BioMarin Acquisition represents and warrants jointly and severally as of the Effective Date and as of the Option Closing Date, to and for the benefit of Medicis, that each of the following representations and warranties is true and correct.

3.1 Due Organization; Etc. Each of BioMarin and BioMarin Acquisition is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Each of BioMarin and BioMarin Acquisition is qualified, authorized, registered or licensed to do business as a foreign corporation in each jurisdiction where its business requires such qualification, except where the failure to be so qualified, authorized, registered or licensed would not have a BioMarin Material Adverse Effect. Each of BioMarin and BioMarin Acquisition has delivered to (or made available for inspection by) Medicis accurate and complete copies of the certificate of incorporation and bylaws of BioMarin and BioMarin Acquisition, as applicable, including all amendments thereto.

3.2 Capitalization.

(a) As of the Effective Date, the authorized capital stock of BioMarin consists solely of (i) 1,000,000 shares of preferred stock, $0.001 par value per share; and (ii) 150,000,000 shares of common stock, $0.001 par value per share (the “BioMarin Common Stock”), and

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BioMarin has no authority to issue any other capital stock. All of the BioMarin Payment Shares will be duly authorized, validly issued, fully paid and nonassessable and will be issued in compliance with Federal securities laws and applicable state securities laws

(b) As of the Effective Date, (i) 64,364,988 shares of BioMarin Common Stock are issued and outstanding, all of which are validly issued, fully paid and nonassessable and free of preemptive rights, (ii) no shares of BioMarin Common Stock are held in the treasury of BioMarin, and (iii) 18,392,703 shares of BioMarin Common Stock are reserved for issuance upon exercise or conversion of options, warrants or other rights to acquire shares of BioMarin Common Stock.

3.3 Authority; Binding Nature of Agreements. Each of BioMarin and BioMarin Acquisition has all corporate power and authority to enter into and perform its obligations under this Agreement, and the execution and delivery by each of BioMarin and BioMarin Acquisition of this Agreement have been duly authorized by all necessary action on the part of each of BioMarin and BioMarin Acquisition and its stockholders, board of directors and officers. This Agreement, assuming the due authorization, execution and delivery by the other parties hereto, constitutes the legal, valid and binding obligation of each of BioMarin and BioMarin Acquisition, enforceable against it in accordance with its terms, subject to the Enforceability Exception.

3.4 Governmental and Other Authorizations. The execution and delivery of this Agreement and the consummation or performance by BioMarin or BioMarin Acquisition, as applicable, of their respective obligations hereunder, do not require any approval of any Governmental Body on the part of BioMarin or BioMarin Acquisition or any material consent, waiver or approval of any other Person on the part of BioMarin or BioMarin Acquisition, other than the filing of a report and notification pursuant to the HSR Act and the expiration of all waiting periods thereunder and the filing of a Form D with the Commission, “blue sky” filings and the filings contemplated under Section 4.8.

3.5 Non-Contravention. The execution and delivery of this Agreement and the consummation or performance by BioMarin or BioMarin Acquisition, as applicable, of their respective obligations hereunder, do not and will not (a) contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any loan, credit or note agreement, mortgage, security agreement, promissory note, license or other agreement or instrument to which BioMarin or BioMarin Acquisition is bound or affected, the contravention or conflict with which or violation of which would have a BioMarin Material Adverse Effect, (b) contravene or conflict with the certificate of incorporation or bylaws of BioMarin or BioMarin Acquisition, or (c) contravene, conflict with or result in a violation of any Legal Requirement or any Order to which BioMarin or BioMarin Acquisition, is subject, the contravention or conflict with which or violation of which would have a BioMarin Material Adverse Effect.

3.6 Filings with the Commission.

(a) BioMarin’s Annual Report on Form 10-K for its fiscal year ended December 31, 2003, at the time it was filed with the Commission (or, if amended or superseded

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by a filing prior to the date of this Agreement, then on the date of such filing): (i) complied in all material respects with the applicable requirements of the Exchange Act; and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(b) With respect to such documents and reports as BioMarin may be required to file with the Commission under Section 13 of the Exchange Act within the twelve months preceding the Effective Date and within the twelve months preceding the Option Closing Date (collectively, the “BioMarin Filings”), at the respective dates they were filed (or if amended or superceded by a filing prior to the date of this Agreement or prior to the Option Closing Date, then on the date so amended or superceded), each such BioMarin Filing, including without limitation any financial statements or schedules included therein, (i) complied in all material respects with all applicable requirements of the Exchange Act and the applicable rules and regulations promulgated thereunder, and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

3.7 Liabilities. Neither BioMarin nor BioMarin Acquisition has, since November 15, 2001, (i) made a general assignment for the benefit of creditors, (ii) filed, or had filed against it, any bankruptcy petition or similar filing, (iii) suffered the attachment or other judicial seizure of all or a substantial portion of its assets, (iv) admitted in writing its inability to pay its debts as they become due, (v) been convicted of, or pleaded guilty or no contest to, any felony, or (vi) taken or been the subject of any action that may have an adverse effect on its ability to comply with or perform any of its covenants or obligations under this Agreement.

3.8 Compliance with Legal Requirements. Each of BioMarin and BioMarin Acquisition is in compliance with each Legal Requirement that is applicable to it or to the conduct of its business or the ownership or use of any of its assets, except to the extent any such noncompliance, individually or in the aggregate, would not reasonably be expected to have a BioMarin Material Adverse Effect. To the Knowledge of BioMarin and BioMarin Acquisition, no event has occurred, and no condition or circumstance exists, that could (with or without notice or lapse of time) constitute or result in a violation by BioMarin or BioMarin Acquisition of, or a failure on the part of BioMarin or BioMarin Acquisition to comply with, any Legal Requirement, except to the extent any such noncompliance, individually or in the aggregate, would not reasonably be expected to have a BioMarin Material Adverse Effect.

3.9 Proceedings; Orders. There is no pending Proceeding, and to the Knowledge of BioMarin or BioMarin Acquisition, no Person has threatened to commence any Proceeding involving (a) BioMarin or BioMarin Acquisition which would reasonably be expected to have a BioMarin Material Adverse Effect; or (b) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, any of the transactions contemplated hereby. To the Knowledge of BioMarin and BioMarin Acquisition, no event has occurred, and no claim, dispute or other condition or circumstance exists, that would reasonably be expected to give rise to or serve as a basis for the commencement of any such Proceeding.

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3.10 Fraudulent Transfers. Neither BioMarin nor BioMarin Acquisition is insolvent, nor will be rendered insolvent by any of the transactions contemplated hereby. Immediately after the Option Closing, (i) each of BioMarin and BioMarin Acquisition will be able to pay its debts as they become due, and (ii) neither BioMarin nor BioMarin Acquisition will have unreasonably small assets with which to conduct its present or proposed business. As used in this Section 3.10, “insolvent” means that the sum of the Person’s assets does not and will not exceed its debts and other liabilities at a fair valuation.

3.11 Investment Banking Fees. None of BioMarin, BioMarin Acquisition or any of their Affiliates has incurred any investment banking, broker or finder fees that will become the responsibility of Medicis or Ascent before or after the Effective Date.

3.12 Nasdaq Listing Compliance. The BioMarin Common Stock is registered pursuant to Section 12(g) of the Exchange Act and is listed on the Nasdaq National Market or any United States national securities exchange and BioMarin has taken no action designed to, or likely to have the effect of, terminating the registration of the BioMarin Common Stock under the Exchange Act or de-listing the BioMarin Common Stock from the Nasdaq National Market or any United States national securities exchange, nor has BioMarin received any notification that the SEC or Nasdaq, Inc. is contemplating terminating such registration or listing.

3.13 Investment Representations of BioMarin.

(a) BioMarin Acquisition will acquire the Option Shares for investment purposes, for its own account and not as nominee or agent for any other Person and not with a view to or for resale in connection with any distribution thereof within the meaning of the Securities Act.

(b) BioMarin Acquisition has had the opportunity to ask questions of and receive answers from Medicis concerning the terms and conditions of the Option Shares subject to this Agreement.

(c) BioMarin Acquisition is able to bear the economic risk of its investment in the Option Shares and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of protecting its interests with respect to its investment in the Option Shares.

(d) BioMarin Acquisition is and will be an “accredited investor” as that term is defined in Rule 501 of Regulation D promulgated under the Securities Act.

(e) BioMarin Acquisition is aware that the Option Shares will be issued and sold in reliance on an exemption from the registration requirements of the Securities Act and that such exemption is expressly conditioned on the accuracy of the representations and warranties contained in this Section 3.13.

(f) BioMarin Acquisition is not a company established solely to acquire the Option Shares.

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3.14 Absence of Changes. For the period from the date of the filing by BioMarin with the Commission of its Annual Report on Form 10-K or its Quarterly Report on Form 10-Q, whichever is last filed with the Commission immediately preceding the Effective Date, to the Effective Date, and for the period from the date of the filing by BioMarin with the Commission of its Annual Report on Form 10-K or its Quarterly Report on Form 10-Q, whichever is last filed with the Commission immediately preceding the Option Closing Date, to the Option Closing Date, there will not have been any adverse change in, and no event shall have occurred that could reasonably be expected to have a BioMarin Material Adverse Effect, except as may be disclosed by BioMarin in any report or statement filed with the Commission.

4. OTHER AGREEMENTS.

4.1 Operation of Medicis and Ascent. Each of Medicis and Ascent shall ensure that from and after the Effective Date (or, with respect to clauses (c) and (k) below, from and after the third month anniversary of the Effective Date) until the end of the Option Term, Ascent shall not, without the prior written consent of BioMarin Acquisition:

(a) engage in any business or activity other than the ownership, operation and maintenance of the assets and properties licensed under the License Agreement and Secondary ANDA, and activities incidental thereto except for:

(i) the collection of accounts receivable outstanding as of the Effective Date;

(ii) the exercise of the option granted under that certain license agreement by and between Medicis and Taro Pharmaceuticals, North America, Inc., January 14, 2003;

(iii) any actions reasonably required for Ascent to perform its obligations under the Transition Services Agreement;

(iv) any actions reasonably required for Ascent to perform its obligations under the Ascent Merger Agreement;

(v) any actions reasonably required for Ascent to perform its obligations under this Agreement, the License Agreement, the Domain Name and Web Site License Agreement, the Supply Agreement and the Lyne License;

(vi) any actions reasonably required as a party to the Litigation Matters, and any litigation matter arising on or after the Effective Date and prior to the Option Closing Date;

(vii) the issuance or payment of dividends or other distributions to Medicis, including but not limited to the distribution of equity securities of BioMarin, if any; and

(viii) any actions reasonably required to effect a reverse stock split.

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(b) acquire or own any material assets other than the Intellectual Property and other than the Secondary ANDA;

(c) adopt, maintain, sponsor, contribute to, or incur any Liability with respect to, any Employee Benefit Plan other than as required by law or the applicable Employee Benefit Plan or as may be required in connection with any continuing obligations to former employees of Ascent;

(d) merge into or consolidate with any other Entity or voluntarily dissolve, liquidate or wind up in whole or in part (or adopt any resolution or plan to do so), lease, license, transfer or otherwise dispose of any of the Intellectual Property Assets or Secondary ANDA or all or substantially all of its assets or change its legal structure;

(e) fail to preserve its existence as an Entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, or, amend, modify or terminate the provisions of its articles or certificate of incorporation and bylaws other than as permitted under Section 4.1(a)(viii);

(f) fail to observe corporate formalities in any material respect;

(g) own any Subsidiary or make any investment in any Person other than shares of BioMarin under the License Agreement;

(h) commingle its assets with the assets of any other Entity;

(i) fail to hold its assets or conduct its business in its own name;

(j) become insolvent or fail to pay its debts and liabilities from its assets as the same may become due;

(k) fail to maintain its books and records and bank accounts separate and apart from those of any other Entity;

(l) have any of its obligations guaranteed by an Affiliate, except for guarantees to BioMarin and BioMarin Acquisition;

(m) enter into any Contract or agreement with any director or officer other than ordinary and customary indemnification arrangements;

(n) acquire obligations or securities of any stockholder, director, officer, partner, member, principal, or Affiliate of itself or of any of its Affiliates;

(o) fail to correct any known misunderstanding regarding the separate identity of Ascent or any stockholder, director, officer, partner, member, principal, or Affiliate of itself or of any of its Affiliates;

(p) assume or hold itself out to be responsible for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person;

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(q) pledge its assets for the benefit of any other Person or make any loans or advances to any other Person, including to any stockholder, director, officer, partner, member, principal, or Affiliate of itself or of any of its Affiliates;

(r) permit or allow any Technology or Development Technology to be subject to any Encumbrance (other than pursuant to a Permitted Encumbrance and the Supply Agreement);

(s) fail to file its own tax returns, to the extent it is required to file any such tax returns, or file or permit the filing of a consolidated federal income tax return with any other Person;

(t) fail either to hold itself out to the public as a legal entity separate and distinct from any other Entity or to conduct its own business solely in its own name in order not (A) to mislead others as to the identity with which such other party is transacting business or (B) to suggest that Ascent or any Affiliate, as the case may be, is responsible for the debts of any third party (including any stockholder, director, officer, partner, member, principal, or Affiliate of Ascent or of any of its Affiliates);

(u) retain any employee or consultant other than as necessary to engage in the activities described in Section 4.1(a) or fail to pay the salaries of such employees;

(v) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or otherwise institute bankruptcy or insolvency proceedings with respect to itself, or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) with respect to itself or with respect to all or any substantial part of its properties or assets or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due or declare or effect a moratorium on its debt or take any corporate action in furtherance of such action; or

(w) issue any capital stock or other security, any option or right to acquire any capital stock or other security, or any instrument convertible or exchangeable for any capital stock or other security;

(x) borrow money or issue evidence of or maintain any indebtedness;

(y) fail to maintain its financial statements separate and apart from those of any other Entity (if it maintains, or is required by law to maintain, financial statements), or otherwise permit its assets to be listed as assets on the consolidated financial statements of any other Entity except as required by GAAP;

(z) take any action that, or omit to take any action not otherwise prohibited by the terms of this Agreement the omission of which, would, or is reasonably likely to, (A) result in failure to satisfy the condition contained in Section 5.1 or (B) result in failure to satisfy the condition contained in Section 5.4; or

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(aa) authorize, commit, enter into, or offer to enter into, any Contract to take any of the actions prohibited by this Section 4.1.

In addition, prior to the Option Closing Date, Ascent shall own all right, title and interest in and to the Secondary ANDA.

4.2 Operation of BioMarin and BioMarin Acquisition. Each of BioMarin and BioMarin Acquisition shall ensure that from and after the Effective Date until the end of the Option Term, neither BioMarin nor BioMarin Acquisition shall, without the prior written consent of Medicis:

(a) adopt a plan or resolution to dissolve or liquidate BioMarin or BioMarin Acquisition;

(b) take any action that, or omit to take any action not otherwise prohibited by the terms of this Agreement the omission of which, would, or is reasonably likely to, (A) result in failure to satisfy the condition contained in Section 6.1 or (B) result in failure to satisfy the condition contained in Section 6.4; or

(c) authorize, commit, enter into, or offer to enter into, any Contract to take any of the actions referred to in this Section 4.2.

4.3 No Disposition or Encumbrance of Option Shares. During the Option Term, Medicis shall not, directly or indirectly, (i) offer, sell, offer to sell, contract to sell, grant any option to purchase or otherwise dispose of or transfer (or announce any offer, sale, offer of sale, contract of sale or grant of any option to purchase or other disposition or transfer of) any Option Shares, or (ii) create or permit to exist any Encumbrance on any of the Option Shares. During the Option Term, Medicis shall permit and Ascent shall stamp or otherwise imprint on each certificate or instrument representing the Option Shares the following legend:

“The securities evidenced by this certificate may not be sold or otherwise transferred except in accordance with the terms and conditions of that certain Securities Purchase Agreement dated May 18, 2004 among the holder hereof, the issuer, and the other parties thereto.”

4.4 Access and Investigation.

(a) Ascent and Medicis shall afford to BioMarin Acquisition and to BioMarin Acquisition’s Representatives access, during normal business hours upon reasonable notice throughout the period from the date hereof through the earlier of the Option Closing Date or the termination of this Agreement, to all the books, records, Contracts, and personnel relating to the Pediatrics Business as BioMarin Acquisition may reasonably request and, during such period, Ascent and Medicis shall furnish promptly to BioMarin Acquisition all other information BioMarin Acquisition reasonably may request, provided that no investigation pursuant to this Section 4.4 shall affect any representations or warranties made herein or the conditions to the obligations of the respective parties to consummate the transactions contemplated hereby.

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(b) Not less than ten (10) Business Days prior to the Option Closing Date, Medicis shall have provided to BioMarin Acquisition a schedule that accurately reflects the following information as to Ascent immediately prior to the Option Closing (i) Ascent’s basis in all of its assets, (ii) the amount of any of Ascent’s net operating loss, net capital loss, unused investment, foreign, or other Tax credit, and the amount of any limitation upon any of the foregoing (including under Section 382, 383 or 384 or the consolidated returns rules promulgated under Section 1502 of the Code); (iii) the amount of any deferred gain or loss allocable to Ascent arising out of any deferred intercompany transaction as defined in Treasury Regulations Section 1.1502-13 or any similar provision of any applicable Legal Requirement.

4.5 Notification. During the Option Term, each party shall promptly notify the other in writing of, and shall subsequently keep such other party updated on a current basis regarding any event, condition, fact or circumstance that would reasonably be expected to adversely affect the timely satisfaction of any of the conditions set forth in Article 5 or 6.

4.6 Noncompetition by Medicis. Medicis agrees that, if the Option Closing occurs, in consideration of the consummation of the transactions contemplated hereby by BioMarin Acquisition hereunder, it shall not and shall cause its Subsidiaries not to, during the period from the Option Closing Date through the fifth anniversary of the Option Closing Date, whether acting alone or as a member of an Entity, and whether as an advisor, principal, consultant, independent contractor, agent, partner, employee, officer, director, 5% or greater equityholder or otherwise, anywhere in the world, (a) engage in, own, operate, maintain or finance directly or indirectly any business or other enterprise engaged in the development, distribution, sale or commercialization of an oral liquid prednisolone sodium solution or oral dissolving tablet prednisolone product, or (b) take any action that is designed or intended or would reasonably be expected to have the effect of discouraging any customer, supplier, lessor, licensor or other business associate of the Pediatrics Business from maintaining a business relationship with BioMarin Acquisition after the Option Closing Date as it maintained with the Pediatrics Business prior to the Effective Date; provided, however, that, notwithstanding the foregoing, (a) Medicis may enter into a transaction or series of transactions that involves the acquisition by Medicis of another Entity whose activities, but for this proviso would violate this Section 4.6 so long as such activities are not primary but are merely ancillary to such Entity’s activities and so long as Medicis terminates or divests such activities within a reasonable period of time following such acquisition not to exceed 180 days, and (b) Medicis may be acquired by merger with another Entity, where the stockholders of Medicis immediately prior to the merger own less than 50% of the surviving entity, whose activities, but for this proviso, would violate this Section 4.6. If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 4.6 is invalid or unenforceable, the parties agree that the court making such determination of invalidity or unenforceability shall have the power to reduce the scope, duration or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

4.7 Public Announcements. BioMarin, BioMarin Acquisition, Medicis and Ascent will consult with each other before issuing any press release or otherwise making any public

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statement with respect to this Agreement, the transactions contemplated hereby or in any of the documents executed in connection herewith. Without limiting the generality of the foregoing, none of Medicis, Ascent, BioMarin or BioMarin Acquisition shall, and none of Medicis, Ascent, BioMarin or BioMarin Acquisition shall permit any of their respective Representatives to, make any disclosure regarding this Agreement, the transactions contemplated hereby or in any of the documents executed in connection herewith unless (a) the other parties shall have approved such disclosure, or (b) such disclosure is required by applicable Legal Requirements (including requirements of the Commission, the New York Stock Exchange or NASDAQ) and the disclosing party has provided the other parties hereto with a copy of the proposed release or statement no later than simultaneously with the required disclosure and has used commercially reasonable efforts to provide a copy of the proposed release or statement no less than two (2) Business Days prior to its release or publication. In the event that a party receives any inquiry regarding any other party, the receiving party shall refer such inquiry to such other party.

4.8 Registration of Shares.

(a) Registration. On or before the thirtieth day following the Effective Date, BioMarin shall prepare and file a registration statement on Form S-3 under the Securities Act, covering the BioMarin Payment Shares (collectively, the “Restricted Stock”) and shall use its best efforts to cause such registration statement to become effective as expeditiously as possible and to remain effective until the earliest to occur of (i) the date the Restricted Stock covered thereby has been sold (but in any event not before the expiration of any longer period required under the Securities Act) or (ii) the date by which all Restricted Stock covered thereby may be sold under Rule 144 without restriction as to volume.

(b) Suspension. Following the effectiveness of a registration statement filed pursuant to this section, BioMarin may, at any time, suspend the effectiveness of such registration for up to thirty (30) days, as appropriate (a “Suspension Period”), by giving notice to Medicis, if BioMarin shall have determined that BioMarin may be required to disclose any material corporate development. Notwithstanding the foregoing, no more than two Suspension Periods may occur during any twelve-month period. BioMarin shall use its best efforts to limit the duration and number of any Suspension Periods. Medicis agrees that, upon receipt of any notice from BioMarin of a Suspension Period, Medicis shall forthwith discontinue disposition of Restricted Stock pursuant to such registration statement or prospectus until the earlier of (A) Medicis (i) is advised in writing by BioMarin that the use of the applicable prospectus may be resumed, (ii) has received copies of a supplemental or amended prospectus, if applicable, and (iii) has received copies of any additional or supplemental filings which are incorporated or deemed to be incorporated by reference into such prospectus, and (B) thirty (30) days after receipt of the notice concerning the Suspension Period.

(c) Registration Procedures. When BioMarin effects the registration of the Restricted Stock under the Securities Act pursuant to Section 4.8(a) hereof, BioMarin will, at its expense, as expeditiously as possible:

(i) In accordance with the Securities Act and the rules and regulations of the Commission, prepare and file in accordance with Section 4.8(a), with the Commission a registration statement with respect to the Restricted Stock and use its best efforts to cause such

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registration statement to become and remain effective for the period described herein, and prepare and file with the Commission such amendments to such registration statement and supplements to the prospectus contained therein as may be necessary to keep such registration statement effective for such period and such registration statement and prospectus accurate and complete for such period (provided that, before filing a registration statement or prospectus or any amendments or supplements thereto, BioMarin will furnish to the counsel selected by Medicis copies of the plan of distribution section of such prospectus proposed to be filed);

(ii) Furnish to Medicis such reasonable number of copies of the registration statement, preliminary prospectus, final prospectus, each amendment and supplement thereto and such other documents as Medicis may reasonably request in order to facilitate the disposition of the Restricted Stock;

(iii) Use its best efforts to register or qualify the Restricted Stock covered by such registration statement under such state securities or blue sky laws of such jurisdictions as Medicis may reasonably request except that BioMarin shall not for any purpose be required to execute a general consent to service of process or to qualify to do business as a foreign corporation in any jurisdiction where it is not so qualified;

(iv) Notify Medicis promptly after it shall receive notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a supplement to any prospectus forming a part of such registration statement has been filed;

(v) Notify Medicis promptly of any request by the Commission for the amending or supplementing of such registration statement or prospectus or for additional information;

(vi) Prepare and file with the Commission, promptly upon the request of Medicis, any amendments or supplements to such registration statement or prospectus which, in the opinion of counsel for Medicis, is required under the Securities Act or the rules and regulations thereunder in connection with the distribution of the Restricted Stock by Medicis;

(vii) Prepare and promptly file with the Commission, and promptly notify Medicis of the filing of, such amendments or supplements to such registration statement or prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, any event has occurred as the result of which any such prospectus or any other prospectus as then in effect would include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;

(viii) Advise Medicis, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such registration statement or the initiation or threatening of any proceeding for that purpose and promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;

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(ix) Cause all such Restricted Stock to be listed on each securities exchange on which similar securities issued by BioMarin are then listed and, if not so listed, to be listed on the Nasdaq National Market or any United States national securities exchange;

(x) Provide a transfer agent and registrar for all such Restricted Stock which shall be the transfer agent for the common stock of BioMarin not later than the effective date of such registration statement; and

(xi) Otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of BioMarin’s first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.

With respect to any registration effected pursuant to Section 4.8(a) hereof, all fees, costs and expenses of and incidental to such registration and the public offering in connection therewith shall be borne by BioMarin; provided, however, that Medicis shall bear its own legal fees, if any, and its pro rata share of any underwriting discounts or commissions, if any.

(d) Indemnification.

(i) BioMarin will indemnify and hold harmless Medicis pursuant to the provisions of this Section 4.8 and any underwriter (as defined in the Securities Act) for Medicis, and any person who controls Medicis or such underwriter within the meaning of the Securities Act, and any officer, director, employee, agent, partner, member or affiliate of Medicis (for purposes of this Section 4.8(d), the “Medicis Registration Indemnified Parties”), from and against, and will reimburse each such Medicis Registration Indemnified Party with respect to, any and all claims, actions, demands, losses, damages, liabilities, costs and expenses to which any such Medicis Registration Indemnified Party may become subject under the Securities Act or otherwise, insofar as such claims, actions, demands, losses, damages, liabilities, costs or expenses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such registration statement, any prospectus contained therein or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that BioMarin will not be liable in any such case to the extent that any such claim, action, demand, loss, damage, liability, cost or expense is caused by an untrue statement or alleged untrue statement or omission or alleged omission so made in strict conformity with information furnished by such Medicis Registration Indemnified Party in writing specifically for use in the preparation thereof.

(ii) Medicis will indemnify and hold harmless BioMarin pursuant to the provisions of this Section 4.8, and any underwriter (as defined in the Securities Act) for Medicis, and any person who controls BioMarin or such underwriter within the meaning of the Securities Act, and any officer, director, employee, agent, partner, member or affiliate of BioMarin (for purposes of this Section 4.8(d), the “BioMarin Registration Indemnified Parties”, and together with the Medicis Registration Indemnified Parties, the “Registration

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Indemnified Parties”), from and against, and will reimburse each such BioMarin Registration Indemnified Party with respect to, any and all claims, actions, demands, losses, damages, liabilities, costs or expenses to which any such BioMarin Registration Indemnified Party may become subject under the Securities Act or otherwise, insofar as such claims, actions, demands, losses, damages, liabilities, costs or expenses are caused by any untrue or alleged untrue statement of any material fact contained in such registration statement, any prospectus contained therein or any amendment or supplement thereto, or are caused by the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made solely in reliance upon and in strict conformity with written information furnished by such Medicis Registration Indemnified Party specifically for use in the preparation thereof; provided, however, that the liability of any such Medicis Registration Indemnified Party pursuant to this subsection (ii) shall be limited to an amount not to exceed the net proceeds received by any such Medicis Registration Indemnified Party pursuant to the registration statement which gives rise to such obligation to indemnify.

(iii) Promptly after receipt by a party indemnified pursuant to the provisions of clause (i) or (ii) of this Section 4.8(d) of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such Registration Indemnified Party will, if a claim thereof is to be made against the indemnifying party pursuant to the provisions of clause (i) or (ii) of this Section 4.8(d), notify the indemnifying party of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to an Registration Indemnified Party otherwise than under this Section 4.8(d) and shall not relieve the indemnifying party from liability under this Section 4.8(d) unless such indemnifying party is prejudiced by such omission. In case such action is brought against any Registration Indemnified Party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Registration Indemnified Party, and after notice from the indemnifying party to such Registration Indemnified Party of its election so to assume the defense thereof, the indemnifying party will not be liable to such Registration Indemnified Party pursuant to the provisions of such clause (i) or (ii) for any legal or other expense subsequently incurred by such Registration Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall be liable to an Registration Indemnified Party for any settlement of any action or claim without the consent of the indemnifying party. No indemnifying party will consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Registration Indemnified Party of a release from all liability in respect to such claim or litigation.

(iv) If the indemnification provided for in clause (i) or (ii) of this Section 4.8(d) is held by a court of competent jurisdiction to be unavailable to a party to be indemnified with respect to any claims, actions, demands, losses, damages, liabilities, costs or expenses referred to therein, then each indemnifying party under any such subsection, in lieu of indemnifying such Registration Indemnified Party thereunder, hereby agrees to contribute to the amount paid or payable by such Registration Indemnified Party as a result of such claims,

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actions, demands, losses, damages, liabilities, costs or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the Registration Indemnified Party on the other in connection with the statements or omissions which resulted in such claims, actions, demands, losses, damages, liabilities, costs or expenses, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the Registration Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the Registration Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount Medicis shall be obligated to contribute pursuant to this clause (iv) shall be limited to an amount not to exceed the net proceeds received by Medicis pursuant to the registration statement which gives rise to such obligation to contribute. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution hereunder from any person who was not guilty of such fraudulent misrepresentation.

(e) Reporting Requirements Under the Exchange Act. From and after the Option Closing Date, BioMarin shall timely file such information, documents and reports as the Commission may require or prescribe under Section 13 of the Exchange Act. BioMarin acknowledges and agrees that the purposes of the requirements contained in this Section 4.8(e) are to enable Medicis to comply with the current public information requirement contained in paragraph (c) of Rule 144 should Medicis ever wish to dispose of any of the Restricted Stock without registration under the Securities Act in reliance upon Rule 144 (or any other similar exemptive provision).

(f) Stockholder Information. BioMarin may require Medicis to furnish BioMarin such information with respect to Medicis and the distribution of its Restricted Stock as BioMarin may from time to time reasonably request in writing as shall be required by law or by the Commission in connection therewith.

4.9 Additional Tax Matters.

(a) Medicis shall include the income of Ascent on Medicis’ consolidated federal Tax Returns for all periods through the end of the Option Closing Date and pay all Taxes attributable to such income. After the Option Closing Date, Ascent shall furnish Tax information to Medicis as Medicis shall reasonably request for inclusion in Medicis’ federal consolidated Tax Return for the period which includes the Option Closing Date. The income of Ascent shall be apportioned to the period up to and including the Option Closing Date and the period after the Option Closing Date by closing the books of Ascent as of the end of the Option Closing Date.

(b) BioMarin and BioMarin Acquisition shall promptly pay or cause to be paid to Medicis all refunds of Taxes and interest thereon received by Biomarin or Biomarin Acquisition attributable to Taxes paid by Medicis or Ascent with respect to any taxable period up to and including the Option Closing Date.

(c) After the Option Closing Date, the Parties agree to furnish or cause to be furnished to each other, upon reasonable request, as promptly as practicable, such information

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(including access to books and records) and assistance relating to Ascent as is reasonably necessary for filing any Tax Return, for the preparation for any audit, and for the prosecution or defense of any claim, suit or proceeding relating to any Tax Return. The Parties agree to cooperate with each other in the conduct of any audit or other proceedings involving Ascent for any Tax purposes as are reasonably necessary to carry out the intent of this subsection.

4.10 Update of “Knowledge” Definition. On or before the Option Closing Date, if any individual listed on Exhibit F or Exhibit G hereto shall have ceased to be employed by Medicis or BioMarin, or ceased to be employed in their capacity on the Effective Date, as applicable, prior to the Option Closing Date, the name of each such individual on Exhibit F or Exhibit G shall be replaced with the name of another employee of Medicis or BioMarin, as applicable, that has succeeded to any such individual’s position, title or job functions and responsibilities. Exhibit F as so updated shall be used for purposes of the definition of “Knowledge” of Medicis and Ascent in this Agreement as of the Option Closing Date. Exhibit G as so updated shall be used for purposes of the definition of “Knowledge” of BioMarin and BioMarin Acquisition in this Agreement as of the Option Closing Date.

4.11 Confidentiality. The Confidentiality Agreement is hereby incorporated herein by reference.

4.12 Reasonable Efforts; Filings and Consents. Subject to the terms and conditions of this Agreement, each of the parties to this Agreement will use its reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary under applicable Legal Requirements, so as to permit consummation of the transactions contemplated hereby prior to the Option Closing Date and will use reasonable efforts to cooperate fully with the other parties hereto to that end. Without limiting the foregoing, if applicable, each of BioMarin and Medicis agrees to file a notification and report form under the HSR Act with the appropriate Governmental Bodies, not later than 180 days prior to the Target Closing Date with respect to the transactions contemplated hereby.

5. CONDITIONS PRECEDENT TO BIOMARIN ACQUISITION’S OBLIGATION TO EXERCISE OPTION.

BioMarin Acquisition’s obligation to exercise the Option, and to take the other actions required to be taken by BioMarin Acquisition at the Option Closing is subject to the satisfaction, at or prior to the Option Closing, of each of the following conditions (any of which may be waived by BioMarin Acquisition, in whole or in part, in writing):

5.1 Accuracy of Representations. The representations and warranties made by Medicis in this Agreement as specified in this Section 5.1 that are qualified by materiality or Material Adverse Effect shall be true and complete as of the Option Closing Date as if made on the Option Closing Date (except for representations and warranties made as of a specified date, which need be true only as of the specified date). The representations and warranties made by Medicis in this Agreement as specified in this Section 5.1 that are not so qualified shall be true and complete in all material respects as of the Option Closing Date as if made on the Option Closing Date (except for representations and warranties made as of a specified date, which need be true in all material respects only as of the specified date). The closing condition set forth in

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this Section 5.1 shall apply only to the representations and warranties contained in (i) the first sentence of Section 2.1 as it relates to Ascent, (ii) the second and third sentences of Section 2.2, (iii) Section 2.3, (iv) clause (b) in Section 2.5, (v) Section 2.6(a), (vi) Section 2.6(c), and (vii) clauses (i) through (iv) in Section 2.7(a) as they relate to Ascent.

5.2 Consents and Governmental Approvals. All material Consents required to be obtained by Medicis from any Governmental Body in order to consummate the transactions contemplated hereby shall have been obtained and shall be in full force and effect, and all waiting periods under the HSR Act shall have expired, other than any Consents the failure of which to obtain would require only the payment by Medicis of monetary amounts, penalties or fines not exceeding, in the aggregate, $10,000,000.

5.3 No Restraints. No preliminary injunction or other order, decree or ruling issued by a court of competent jurisdiction or other Governmental Body having jurisdiction, nor any statute, rule, regulation, or executive order promulgated or enacted by any Governmental Body shall be in effect that would make any of the transactions contemplated hereby illegal or otherwise prohibit the consummation of the transactions contemplated hereby.

5.4 Performance of Obligations. Each of the covenants and obligations that Medicis and Ascent is required to comply with or to perform in Section 4.1(d) and 4.1(v) at or prior to the Option Closing Date shall have been duly complied with and performed in all material respects.

5.5 Additional Documents. BioMarin and BioMarin Acquisition shall have received the following documents:

(a) an opinion letter from Akin Gump Strauss Hauer & Feld LLP, dated the Option Closing Date, in the form of Exhibit C;

(b) a certificate executed by a duly authorized officer not less senior than vice president of Medicis to the effect that Medicis has satisfied each of the conditions set forth in Sections 5.1 and 5.4;

(c) a certificate executed by a duly authorized officer not less senior than vice president of Ascent to the effect that Ascent has satisfied each of the conditions set forth in Section 5.4; and

(d) duly executed resignations of each of the directors and officers of Ascent dated as of the Option Closing Date.

5.6 Release. Medicis and Ascent shall have executed a mutual release of Liabilities in the form attached hereto as Exhibit D.

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6. CONDITIONS PRECEDENT TO MEDICIS’ OBLIGATION TO CLOSE.

Medicis’ obligation to sell and transfer the Option Shares and to take the other actions required to be taken by Medicis at the Option Closing is subject to the satisfaction, at or prior to the Option Closing, of each of the following conditions (any of which may be waived by Medicis, in whole or in part, in writing):

6.1 Accuracy of Representations. The representations and warranties made by BioMarin and BioMarin Acquisition in this Agreement as specified in this Section 6.1 that are qualified by materiality or Material Adverse Effect shall be true and complete as of the Option Closing Date as if made on the Option Closing Date (except for representations and warranties made as of a specified date, which need be true only as of the specified date). The representations and warranties made by BioMarin and BioMarin Acquisition in this Agreement as specified in this Section 6.1 that are not so qualified shall be true and complete in all material respects as of the Option Closing Date as if made on the Option Closing Date (except for representations and warranties made as of a specified date, which need be true in all material respects only as of the specified date). The closing condition set forth in this Section 6.1 shall apply only to the representations and warranties contained in (i) the first sentence of Section 3.1, (ii) Section 3.3 and (iii) clause (b) in Section 3.5.

6.2 Consents and Governmental Approvals. All material Consents required to be obtained by BioMarin or BioMarin Acquisition from any Governmental Body in order to consummate the transactions contemplated hereby shall have been obtained and shall be in full force and effect, and all waiting periods under the HSR Act shall have expired, other than any Consents the failure of which to obtain would require only the payment by BioMarin and BioMarin Acquisition of monetary amounts, penalties or fines, not exceeding, in the aggregate, $1,000,000.

6.3 No Restraints. No preliminary injunction or other order, decree or ruling issued by a court of competent jurisdiction or other Governmental Body having jurisdiction, nor any statute, rule, regulation, or executive order promulgated or enacted by any Governmental Body shall be in effect that would make any of the transactions contemplated hereby illegal or otherwise prohibit the consummation of the transactions contemplated hereby.

6.4 Performance of Obligations. Each of the covenants and obligations that BioMarin and BioMarin Acquisition are required to comply with or to perform in Section 4.2 at or prior to the Option Closing shall have been duly complied with and performed in all material respects.

6.5 Additional Documents; Payments. Medicis shall have received the following:

(a) a certificate from a duly authorized officer not less senior than vice president of BioMarin to the effect that BioMarin has satisfied each of the conditions set forth in Sections 6.1 and 6.4;

(b) a certificate from a duly authorized officer not less senior than vice president of BioMarin Acquisition to the effect that BioMarin Acquisition has satisfied each of the conditions set forth in Sections 6.1 and 6.4;

(c) an opinion letter from Paul, Hastings, Janofsky & Walker LLP, dated the Option Closing Date, in the form of Exhibit E; and

(d) subject to Section 1.3(c), all payments required to be made by BioMarin or BioMarin Acquisition pursuant to the License Agreement.

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7. TERMINATION.

7.1 Termination Events. This Agreement may be terminated prior to the Option Closing Date:

(a) by BioMarin Acquisition if there is a Breach of any representation, warranty, covenant or obligation of Medicis or Ascent set forth in this Agreement which Breach (i) would give rise to the failure of a condition set forth in Section 5.1 or Section 5.4 and (ii) (if susceptible to cure) has not been cured within 20 Business Days following receipt by Medicis of notice of such Breach (a “Medicis Breach”);

(b) by Medicis if there is a Breach of any representation, warranty, covenant or obligation of BioMarin or BioMarin Acquisition set forth in this Agreement which Breach (i) would give rise to the failure of a condition set forth in Section 6.1 or Section 6.4 and (ii) (if susceptible to cure) has not been cured within 20 Business Days following receipt by BioMarin Acquisition and BioMarin of notice of such Breach (a “BioMarin Breach”);

(c) by the mutual written consent of the parties hereto; and

(d) by BioMarin Acquisition, upon delivery of a Notice of Non-Exercise to Medicis in accordance with Section 1.2.

7.2 Termination Procedures. If BioMarin Acquisition wishes to terminate this Agreement pursuant to Section 7.1, BioMarin Acquisition shall deliver to Medicis a written notice stating that BioMarin Acquisition is terminating this Agreement and setting forth a brief description of the basis on which BioMarin Acquisition is terminating this Agreement. If Medicis wishes to terminate this Agreement pursuant to Section 7.1, Medicis shall deliver to BioMarin Acquisition a written notice stating that Medicis is terminating this Agreement and setting forth a brief description of the basis on which Medicis is terminating this Agreement.

7.3 Effect of Termination. If this Agreement is terminated pursuant to Section 7.1, this Agreement shall become wholly void and of no further force and effect, without liability to BioMarin, BioMarin Acquisition, Medicis, Ascent or any of their respective Representatives or Affiliates, except that the provisions set forth in Sections 4.7, 4.11, 7.3, 9.2, 9.3, 9.8, 9.11 and, in the case of termination of this Agreement pursuant to Section 7.1(b) or (d), 9.20, shall remain in full force and effect; provided, however, that nothing in this Section 7.3 shall be deemed to release any party from liability for any Breach of its obligations under this Agreement.

8. SURVIVAL AND INDEMNIFICATION

8.1 Survival of Representations and Covenants.

(a) All representations and warranties contained in this Agreement shall survive the Option Closing Date and shall expire at 11:59 p.m. (Pacific Time) on the eighteenth-month anniversary of the Option Closing Date, and shall thereafter be of no further force or effect, except (i) the representations and warranties set forth in Sections 2.3, 2.6, 2.7, 2.8, 2.13, 3.3, and 3.13 shall expire on the expiration of the relevant statute of limitations, and (ii) to the extent required to enforce the parties’ rights and obligations hereunder following the

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end of such period for any claims for which a Claim Notice (as defined below) has properly been made prior to the expiration of such period. All of the covenants, agreements and obligations of the parties contained in this Agreement shall survive (i) until fully performed or fulfilled, unless non-compliance with such covenants, agreements or obligations is waived in writing by the party or parties entitled to such performance or (ii) if not fully performed or fulfilled, until the expiration of the relevant statute of limitations. Notwithstanding anything in this Agreement to the contrary, if this Agreement is terminated pursuant to Section 7.1(c) or (d), the representations and warranties contained in this Agreement shall thereafter be of no further force or effect.

(b) For purposes of this Agreement, a “Claim Notice” relating to a particular representation or warranty or covenant shall be deemed to have been given if any Indemnified Party, acting in good faith, delivers to the Indemnifying Party a written notice stating that such Indemnified Party reasonably believes that there is or has been a possible Breach of such representation or warranty or covenant and containing (i) a brief description of the circumstances supporting such Indemnified Party reasonable belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may arise as a direct or indirect result of such possible Breach.

(c) Notwithstanding that the accuracy and performance of only certain representations, warranties and covenants are conditions to the obligations of the parties hereto to consummate the transactions contemplated hereby, any party may pursue claims for indemnification with respect to Damages that arise from the Breach of any representation, warranty or covenant contained in this Agreement, regardless of whether the party asserting a claim for indemnification had knowledge of such Breach prior to the Option Closing.

8.2 Indemnification by Medicis.

(a) From and after the Effective Date, Medicis shall hold harmless and indemnify each of the BioMarin Indemnitees from and against, and shall compensate and reimburse each of the BioMarin Indemnitees for, any Damages suffered or incurred by any of the BioMarin Indemnitees or to which any of the BioMarin Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any Third Party Claim) and that arise from:

(i) any Breach of any of the representations or warranties made by Medicis in this Agreement;

(ii) any Breach of any covenant or obligation of Medicis or Ascent contained in this Agreement;

(iii) any Liability of Ascent at the Option Closing, other than any Liability for which BioMarin has indemnified Medicis pursuant to Section 8.3(a)(iii) below; and

(iv) any Proceeding relating directly or indirectly to any Breach or Liability of the type referred to in clauses “(i)” through “(iii)” above (including any Proceeding commenced by any BioMarin Indemnitee for the purpose of enforcing any of its rights under this Section 8.2).

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(b) Subject to Section 8.2(d), Medicis shall not be required to make any indemnification payment pursuant to Sections 8.2(a)(i) of this Agreement, Section 9.2(a)(i) of the Asset Purchase Agreement and Section 12.2(a)(i) of the License Agreement, until such time as and to the extent that the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the BioMarin Indemnitees, or to which any one or more of the BioMarin Indemnitees has or have otherwise become subject, exceeds, in the aggregate, $250,000 and then only to the extent of such excess.

(c) Notwithstanding anything in this Agreement to the contrary, but subject to Section 8.2(d), the aggregate liability for any indemnification payments pursuant to Section 8.2(a)(i) of this Agreement, Section 9.2(a)(i) of the Asset Purchase Agreement and Section 12.2(a)(i) of the License Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the “Medicis Cap”); provided, however, that the Medicis Cap shall not apply to any indemnification obligation of Medicis arising out of any Breach of Section 2.3, 2.6 or 2.7.

(d) The limitations on the indemnification obligations of Medicis set forth in each of Section 8.2(b) and Section 8.2(c) shall not apply to any willful Breach, intentional misrepresentation or fraud by Medicis or Ascent.

(e) The indemnification obligations of Medicis set forth in this Section 8.2 shall be without any right of Medicis or any of its Affiliates to any contribution from, or recourse against, Ascent. Medicis, on behalf of itself and each of its Affiliates, hereby completely releases and covenants not to sue Ascent and BioMarin and BioMarin Acquisition and their respective Affiliates, in their capacity as direct or indirect owners of Ascent, from or with respect to any and all Liabilities arising from or in connection with any Damages for which Medicis is obligated to indemnify under this Section 8.2.

(f) To the extent that actions or failures to act or other circumstances result in a Breach of a representation, warranty or covenant or other triggering event giving rise to a right of indemnification to a party under this Agreement, the License Agreement and/or the Asset Purchase Agreement, such party shall be entitled to only one recovery of Damages resulting from such actions, failures to act or other circumstances giving rise to the right of indemnification, regardless of whether the actions, failures to act or other circumstances giving rise to the right of indemnification constitute a breach of more than one agreement. The parties acknowledge that the purpose of this provision is to prevent duplicative recovery for the same Damages, and not to preclude the recovery of Damages for separate and independent indemnity claims that may arise under the various agreements.

8.3 Indemnification by BioMarin.

(a) From and after the Effective Date, BioMarin shall hold harmless and indemnify the Medicis Indemnitees from and against, and shall compensate and reimburse the Medicis Indemnitees for, any Damages suffered or incurred by any of the Medicis Indemnitees or to which any of the Medicis Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any Third Party Claim) and that arise from:

(i) any Breach of any representation or warranty made by BioMarin or BioMarin Acquisition in this Agreement;

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(ii) any Breach of any covenant or obligation of BioMarin or BioMarin Acquisition contained in this Agreement;

(iii) any Third Party Claim arising from the conduct or operation of making, manufacturing, marketing, selling, distributing, importing, exporting and developing of the Products following the Effective Date, except Damages suffered or incurred or arising from the Breach of Medicis, Ascent or Medicis Manufacturing, as applicable, under the Supply Agreement, the Transition Services Agreement or the License Agreement;

(iv) any Proceeding relating directly or indirectly to any Breach, Liability or Third Party Claim of the type referred to in clauses “(i)” through “(iii)” above (including any Proceeding commenced by any Medicis Indemnitee for the purpose of enforcing its rights under this Section 8.3).

(b) Subject to Section 8.3(d), BioMarin shall not be required to make any indemnification payment pursuant to Section 8.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement and Section 12.3(a)(i) of the License Agreement, until such time as and to the extent that the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by the Medicis Indemnitees or Ascent, or to which the Medicis Indemnitees or Ascent have otherwise become subject, exceeds, in the aggregate, $250,000 and then only to the extent of such excess.

(c) Notwithstanding anything in this Agreement to the contrary, but subject to Section 8.3(d), the aggregate liability for any indemnification payments pursuant to Section 8.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement and Section 12.3(a)(i) of the License Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the “BioMarin Cap”); provided, however, that the BioMarin Cap shall not apply to any indemnification obligation of BioMarin arising out of any Breach of Section 3.3.

(d) The limitation on the indemnification obligations of BioMarin that is set forth in Section 8.3(b) and Section 8.3(c) shall not apply to (i) any failure by BioMarin Acquisition to make any payment pursuant to Section 1.4(b), or (ii) any willful Breach, intentional misrepresentation or fraud by BioMarin or BioMarin Acquisition.

(e) To the extent that actions or failures to act or other circumstances result in a Breach of a representation, warranty or covenant or other triggering event giving rise to a right of indemnification to a party under this Agreement, the License Agreement and/or the Asset Purchase Agreement, such party shall be entitled to only one recovery of Damages resulting from such actions, failures to act or other circumstances giving rise to the right of indemnification, regardless of whether the actions, failures to act or other circumstances giving rise to the right of indemnification constitute a breach of more than one agreement. The parties

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acknowledge that the purpose of this provision is to prevent duplicative recovery for the same Damages, and not to preclude the recovery of Damages for separate and independent indemnity claims that may arise under the various agreements.

8.4 Procedures Relating to Indemnification for Third Party Claims.

(a) Within ten (10) Business Days after a BioMarin Indemnitee or Medicis Indemnitee obtains Knowledge of the commencement of any third-party claim, action, suit or proceeding (a “Third Party Claim”) or the occurrence of any fact which may become the basis of a Third Party Claim in respect of which an Indemnified Party is entitled to indemnification under this Agreement, such Indemnified Party shall notify in writing the Indemnifying Party of such Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and non-privileged documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.

(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate at its expense in the defense thereof and, if it so chooses within thirty (30) days after receipt of notice of such claim to assume the defense thereof at the Indemnifying Party’s expense, with counsel selected by the Indemnifying Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party shall be permitted to participate in the defense thereof and to employ counsel (not reasonably objected to by the Indemnifying Party), at its own expense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party (i) for any period during which the Indemnifying Party has not assumed the defense thereof or is not using commercially reasonable efforts to pursue the defense thereof (other than during the period in which the Indemnified Party failed to give notice of the Third Party Claim as provided above), or (ii) if the Indemnified Party reasonably determines (x) that there may be a conflict between the positions of the Indemnifying Party and the Indemnified Party in defending such claim or action, or (y) that there may be legal defenses available to the Indemnified Party different from or in addition to those available to the Indemnifying Party.

(c) If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnified Parties shall reasonably cooperate with the Indemnifying Party, at the expense of the Indemnifying Party, in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of non-privileged records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim,

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the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim for monetary Damages which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the monetary Damages in connection with such Third Party Claim and which releases the Indemnifying Party and the Indemnified Party completely in connection with such Third Party Claim and does not impose any covenant or commitment on the Indemnified Party.

8.5 Other Claims. In the event any Indemnified Party should have a claim against any Indemnifying Party under Section 8.2 or 8.3 that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice to the Indemnifying Party of such claim within 15 Business Days of obtaining Knowledge of the occurrence of such claim. The failure by any Indemnified Party so to notify the Indemnifying Party within this time period shall not relieve the Indemnifying Party from any liability which it may have to such Indemnified Party under Section 8.2 or 8.3, except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party does not notify the Indemnified Party within 15 Business Days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 8.2 or 8.3, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 8.2 or 8.3 and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined by agreement between the Indemnifying Party and the Indemnified Party or by judgment or decree of a court of competent jurisdiction. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnified Party shall attempt to resolve such claim in accordance with Section 9.9.

8.6 Settlements. No party may settle any claim, action or proceeding related to a liability to a third party without the consent of the other parties, if such settlement would impose any monetary obligation on the other parties or require the other parties to submit to an injunction or impose any covenant or commitment on the other party or otherwise limit the other party’s rights under this Agreement, and any payment made by a party in such a settlement without obtaining such consent shall be at its own cost and expense.

8.7 No Consequential or Punitive Damages. No party hereto (or its Affiliates) shall, under any circumstance, be liable to any other party (or its Affiliates) for any consequential, exemplary, special, incidental or punitive Damages claimed by such other party under the terms of or due to any Breach of this Agreement.

9. MISCELLANEOUS PROVISIONS.

9.1 Further Assurances. From and after the Effective Date, each party hereto shall execute and deliver such documents and take such other actions, as such other party may

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reasonably request, for the purpose of carrying out or evidencing any of the transactions contemplated hereby.

9.2 Fees and Expenses; Investment Banking Fees.

(a) Each party to this Agreement shall bear and pay all fees, costs and expenses (including all legal fees and expenses, that have been incurred or that are in the future incurred by, on behalf of or for the benefit of such party in connection with: (i) the negotiation, preparation and review of any letter of intent or similar document relating to any of the transactions contemplated hereby; (ii) the investigation and review conducted by such party and its Representatives with respect to the transactions contemplated hereby; (iii) the negotiation, preparation and review of this Agreement or any of the documents delivered in connection herewith; (iv) the preparation and submission of any filing or notice required to be made or given in connection with any of the transactions contemplated hereby, and the obtaining of any Consent required to be obtained in connection with any of the transactions contemplated hereby; and (v) the consummation and performance of the transactions contemplated hereby.

(b) Notwithstanding anything to the contrary contained elsewhere in this Agreement, and regardless of whether or not the Option Closing takes place, each party to this Agreement shall pay its own investment banking, broker or finder fees, if any, incurred in connection with the transactions contemplated hereby.

9.3 Attorneys’ Fees. If any legal action or other legal proceeding relating to any Transaction Agreement or the enforcement of any provision of any Transaction Agreement is brought by one party against any other party to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).

9.4 Notices. All notices, demands and other communications under or in connection with this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) if delivered personally, upon delivery, (b) if delivered by registered or certified mail (return receipt requested) from the United States, upon the earlier of actual delivery or three Business Days after being mailed, (c) if sent by overnight delivery by a recognized overnight delivery service for overnight delivery, upon the earlier of actual delivery or one Business Day after being sent, or (d) if given by facsimile, upon confirmation of transmission by facsimile (or, if such confirmation does not occur during normal business hours on a Business Day then on the next Business Day), in each case to the parties at the following addresses or facsimile numbers or to such other address or facsimile numbers as each party may designate for itself by like notice to the other parties:

if to Medicis:

Medicis Pharmaceutical Corporation

8125 N. Hayden Road

Scottsdale, Arizona 85258

Facsimile: (602) 778-6007

Attn: Jonah Shacknai

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if to Ascent:

Ascent Pediatrics, Inc.

8125 N. Hayden Road

Scottsdale, Arizona 85258

Facsimile: (602) 778-6007

Attn: Jonah Shacknai

With a copy to each of (which copies shall not constitute notice):

Medicis Pharmaceutical Corporation

8125 N. Hayden Road

Scottsdale, Arizona 85258

Facsimile: (602) 808-3881

Attn: General Counsel

and

Akin Gump Strauss Hauer & Feld LLP

1700 Pacific Ave., Suite 4100

Dallas, Texas 75201

Facsimile: (214) 969-4343

Attention: Michael E. Dillard, P.C.

if to BioMarin:

BioMarin Pharmaceutical Inc.

371 Bel Marin Keys Blvd., Suite 210

Novato, California 94949

Facsimile: (415) 382-7889

Attention: Fredric D. Price

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if to BioMarin Acquisition:

BioMarin Pediatrics Inc.

371 Bel Marin Keys Blvd., Suite 210

Novato, California 94949

Facsimile:  (415) 382-7889

Attention: Fredric D. Price

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

Paul, Hastings, Janofsky & Walker LLP

515 South Flower Street, 25th Floor

Los Angeles, California 90071

Attention: Siobhan McBreen Burke, Esq.

Telephone:   (213) 683-6000

Facsimile:      (213) 627-0705

9.5 Time of the Essence. Time is of the essence of this Agreement.

9.6 Headings. The headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.

9.7 Counterparts. This Agreement may be executed in several counterparts (including by facsimile), each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.

9.8 Governing Law; Venue.

(a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of New York (without giving effect to principles of conflicts of laws).

(b) Any legal action or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in New York, New York in the Borough of Manhattan. Each party to this Agreement:

(i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in New York, New York in the Borough of Manhattan (and each appellate court located in the State of New York) in connection with any such legal proceeding;

(ii) agrees that each state and federal court located in New York, New York in the Borough of Manhattan shall be deemed to be a convenient forum; and

(iii) agrees not to assert (by way of motion, as a defense or otherwise), in any such legal proceeding commenced in any state or federal court located in New York, New

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York in the Borough of Manhattan, any claim that such party is not subject personally to the jurisdiction of such court, that such legal proceeding has been brought in an inconvenient forum, that the venue of such proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court.

(c) The parties hereto agree that, if any Proceeding is commenced against any Indemnified Party by any Person in or before any court or other tribunal anywhere in the world, then such Indemnified Party may proceed against the Indemnifying Party in or before such court or other tribunal with respect to any indemnification claim or other claim arising directly or indirectly from or relating directly or indirectly to such Proceeding or any of the matters alleged therein or any of the circumstances giving rise thereto.

9.9 Dispute Resolution Procedures. In the event any dispute arises between the parties with respect to the interpretation of this Agreement or with respect to the performance of either party, the parties shall first seek to resolve such dispute by negotiations between senior executives who have authority to settle the dispute. When a party believes there is a dispute relating to the Agreement, such party shall give written notice of the dispute to the other party or parties subject to the dispute. The senior executives shall meet promptly after the date of such notice and shall attempt in good faith within 45 days after the date of such notice to resolve the dispute prior to initiating litigation with respect to such matter. Notwithstanding the foregoing, if no such resolution is reached within such 45 days, then any party may initiate any proceeding or pursue any remedy it deems appropriate and that is not prohibited hereby.

9.10 Successors and Assigns; Parties In Interest.

(a) This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, the other Indemnified Parties, and the respective successors and assigns (if any) of the foregoing. No Person (including any creditor of Medicis or Ascent or any former or current employee of Ascent) who is not a party to this Agreement shall have any rights hereunder as a third-party beneficiary or otherwise.

(b) Neither this Agreement nor the rights and obligations of any party hereunder shall be assigned without the prior written consent of the other parties, which consent may be given or withheld in such party’s sole discretion. If Medicis or BioMarin or any of their respective successors (i) consolidates with or merges into any other Person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Medicis or BioMarin, as the case may be, shall assume the obligations set forth in this Agreement.

9.11 Exclusive Remedies; Specific Performance. Except as expressly provided herein, from and after the Option Closing Date, the remedies provided in Section 1.5, Article 8 and the Escrow Agreement shall constitute the sole and exclusive remedy available to each party hereto for recovery against another party for Breaches of the representations, warranties, covenants and agreements in this Agreement. The parties hereto acknowledge that the material covenants, obligations and other provisions to be performed under this Agreement are of a special, unique and extraordinary character, and that irreparable injury will result from any

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violation or continuing violation of the provisions of this Agreement for which money damages may not be an adequate remedy. Accordingly, the parties agree that in the event of any Breach or threatened Breach by any party hereto of any material covenant, obligation or other provision set forth in this Agreement, the other party or parties shall be entitled (in addition to any other remedy that may be available to it) to seek in accordance with applicable law, (i) a decree or order of specific performance or mandamus to enforce the observance and performance of such covenant, obligation or other provision, and (ii) an injunction restraining such Breach or threatened Breach.

9.12 Waiver. No failure on the part of any Person to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Person in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No Person shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Person; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

9.13 Amendments. This Agreement may not be amended, modified, altered or supplemented other than by means of a written instrument duly executed and delivered on behalf of BioMarin, BioMarin Acquisition, Medicis and Ascent.

9.14 Severability. In the event that any provision of this Agreement, or the application of any such provision to any Person or set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Agreement, and the application of such provision to Persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.

9.15 Entire Agreement. This Agreement, the Escrow Agreement and the other documents executed in connection herewith, set forth the entire understanding of the parties relating to the subject matter thereof and supersede all prior agreements and understandings among or between any of the parties relating to the subject matter thereof.

9.16 Performance Guarantee.

(a) BioMarin hereby unconditionally, irrevocably and absolutely guarantees to Medicis the due and punctual performance and discharge of all of BioMarin Acquisition’s obligations under this Agreement, including, without limitation, the due and punctual payment of the Cash Option Payment and the Additional Consideration, if any, any other amount that BioMarin Acquisition is or may become obligated to pay pursuant to this Agreement, and delivery of the BioMarin Payment Shares (collectively, the “Obligations”). The guarantee under this Section 9.16 is a guarantee of timely payment and performance of the Obligations and not merely of collection.

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(b) To the fullest extent permitted by applicable law, the obligations of BioMarin hereunder shall remain in full force and effect without regard to, and shall not be affected or impaired by, (i) any change in the corporate structure or ownership of BioMarin Acquisition or the bankruptcy, insolvency, reorganization, dissolution, liquidation, or other similar proceeding relating to BioMarin Acquisition or any Affiliate or Subsidiary of either BioMarin Acquisition or BioMarin or (ii) any neglect, delay, omission, failure or refusal of BioMarin to take or prosecute any action in connection with this Agreement or any other agreement delivered in connection herewith. In connection with this Section 9.16, BioMarin unconditionally waives: (i) any right to receive demands, protests, or other notices of any kind or character whatsoever, provided that the same has been delivered to BioMarin Acquisition, (ii) any right to require Medicis or Ascent to proceed first against BioMarin Acquisition or to exhaust any security held by Medicis or Ascent or to pursue any other remedy, (iii) any defense based upon an election of remedies by Medicis or Ascent, (iv) any duty of Medicis or Ascent to advise BioMarin of any information known to Medicis or Ascent regarding BioMarin Acquisition or its ability to perform under this Agreement, and (v) all suretyship and other defenses of every kind and nature.

(c) The obligations of BioMarin under this Section 9.16 shall be automatically reinstated if and to the extent that for any reason any payment or other performance by or on behalf of BioMarin Acquisition in respect of the Obligations are rescinded or must be otherwise restored, and BioMarin agrees that it will indemnify Medicis and Ascent on demand for all costs and expenses (including reasonable attorneys fees and expenses) incurred by Medicis and Ascent in connection with such rescission or restoration. If in connection with the foregoing, Medicis and Ascent is required to refund part or all of any payment of BioMarin Acquisition, such payment by Medicis and Ascent shall not constitute a release of BioMarin from any liability hereunder, and BioMarin’s liability hereunder shall be reinstated to the fullest extent allowed under applicable law and shall not be construed to be diminished in any manner.

(d) This Section 9.16 shall survive the Option Closing and shall remain in full force and effect, subject to the provisions of Section 9.16(c).

9.17 Construction.

(a) For purposes of this Agreement, including the Exhibits hereto, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders.

(b) The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.

(c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

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(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.

9.18 Consistency. Each of the Parties hereto agrees to report the transaction contemplated herein for all state and federal Tax purposes as a sale and purchase of all of the outstanding capital stock of Ascent on the Option Closing Date.

9.19 NO PROJECTION OR FINANCIAL FORECAST. MEDICIS IS NOT MAKING ANY REPRESENTATION OR WARRANTY TO BIOMARIN AND BIOMARIN ACQUISITION WITH RESPECT TO (I) ANY FINANCIAL PROJECTION OR FORECAST RELATING TO THE PEDIATRICS BUSINESS, THE ACQUIRED ASSETS OR LIABILITIES OF MEDICIS OR ASCENT OR RELATED TO THE PHARMACEUTICAL MARKET AS A WHOLE OR THE MARKET FOR ORAL LIQUID PREDNISOLONE SOLUTION PRODUCTS OR ORAL DISSOLVING TABLET PREDNISOLONE PRODUCTS SPECIFICALLY, INCLUDING BUT NOT LIMITED TO ANY PROJECTIONS INCLUDING FUTURE SALES OF SUCH PRODUCTS, OR THE INTRODUCTION OF ANY COMPETITIVE PRODUCTS (WHETHER GENERIC OR NAME BRAND).

9.20 Noncompetition by BioMarin. Each of BioMarin and BioMarin Acquisition agree that, if this Agreement is terminated by Medicis pursuant to Section 7.1(b), by the parties hereto pursuant to Section 7.1(c), or by BioMarin Acquisition pursuant to Section 7.1(d), it shall not and shall cause its Subsidiaries not to, during the period from the termination date through the fifth anniversary of the termination date, whether acting alone or as a member of an Entity, and whether as an advisor, principal, consultant, independent contractor, agent, partner, employee, officer, director, 5% or greater equityholder or otherwise, anywhere in the world, (a) engage in, own, operate, maintain or finance directly or indirectly any business or other enterprise engaged in the development, distribution, sale or commercialization of an oral liquid prednisolone sodium solution or oral dissolving tablet prednisolone product, or (b) take any action that is designed or intended or would reasonably be expected to have the effect of discouraging any customer, supplier, lessor, licensor or other business associate of the business of BioMarin Acquisition or its Affiliates related to the making, manufacturing, marketing, selling, distributing, importing, exporting and developing of the Products from maintaining a business relationship with Medicis or Ascent after the termination date as it was maintained with the business of BioMarin Acquisition or its Affiliates related to the making, manufacturing, marketing, selling, distributing, importing, exporting and developing of the Products prior to the termination date; provided, however, that, notwithstanding the foregoing, (a) BioMarin may enter into a transaction or series of transactions that involves the acquisition by BioMarin of another Entity whose activities, but for this proviso would violate this Section 9.20 so long as such activities are not primary but are merely ancillary to such Entity’s activities and so long as BioMarin terminates or divests such activities within a reasonable period of time following such acquisition not to exceed 180 days, and (b) BioMarin may be acquired by merger with another Entity, where the stockholders of BioMarin immediately prior to the merger own less than 50% of the surviving entity, whose activities, but for this proviso, would violate this Section 9.20. If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 9.20 is invalid or unenforceable, the parties agree that the court making such determination of invalidity or unenforceability shall have the power to reduce the scope, duration

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or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

[SIGNATURE PAGE FOLLOWS]

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[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]

The parties to this Agreement have caused this Agreement to be executed and delivered by their duly authorized representatives as of May 18, 2004.

MEDICIS PHARMACEUTICAL CORPORATION, a Delaware corporation
By:	/s/ Mark A. Prygoki, Sr.
Name:	Mark A. Prygoki, Sr.
Title:	Executive Vice President, Secretary and Treasurer
ASCENT PEDIATRICS, INC., a Delaware corporation
By:	/s/ Mark A. Prygoki, Sr.
Name:	Mark A. Prygoki, Sr.
Title:	Secretary and Treasurer
BIOMARIN PHARMACEUTICAL INC., a Delaware corporation
By:	/s/ Fredric D. Price
Name:	Fredric D. Price
Title:	Chairman and Chief Executive Officer
BIOMARIN PEDIATRICS INC., a Delaware corporation
By:	/s/ Christopher Starr
Name:	Christopher Starr
Title:	President

Exhibit A

CERTAIN DEFINITIONS

For purposes of the Agreement (including this Exhibit A):

“Acquisition Transaction” shall mean any transaction or series of transactions (other than the transactions contemplated hereby and in the documents executed in connection herewith) involving:

(a) any merger, consolidation, share exchange, business combination, issuance of securities, direct or indirect acquisition of securities, recapitalization, tender offer, exchange offer or other similar transaction in which (i) Ascent is a constituent corporation, (ii) a Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) of Persons directly or indirectly acquires any of the outstanding securities of any class of Ascent (other than in connection with the acquisition of Medicis), or (iii) Ascent issues any securities;

(b) any direct or indirect sale, lease, exchange, transfer, license, acquisition or disposition of any business or businesses or of all or substantially all of the assets or rights that are part of the Pediatrics Business;

(c) any liquidation or dissolution of Medicis or Ascent; or

(d) any sale or other transfer of any of the Intellectual Property, the Secondary ANDA, the Option Shares, or Medicis’ or Ascent’s obligations under this Agreement.

“Affiliate” shall mean with respect to any Person, any other Person controlling, controlled by or within common control with such Person. Without limiting the foregoing, Ascent is an Affiliate of Medicis and Medicis is an Affiliate of Ascent, and BioMarin is an Affiliate of BioMarin Acquisition and BioMarin Acquisition is an Affiliate of BioMarin.

“Agreement” shall mean the Securities Purchase Agreement to which this Exhibit A is attached (including the Ascent Disclosure Schedule), as it may be amended from time to time in accordance herewith.

“Ascent Disclosure Schedule” shall mean the schedule (dated as of the date of the Agreement) delivered to BioMarin Acquisition on behalf of Ascent, a copy of which is attached to the Agreement and incorporated in the Agreement by reference.

“Ascent Merger Agreement” shall mean that certain Agreement and Plan of Merger among Medicis, MPC Merger Corp. and Ascent, dated October 1, 2001.

“Asset Purchase Agreement” shall mean that certain asset purchase agreement among BioMarin, BioMarin Acquisition, Ascent and Medicis dated as of April 20, 2004.

“BioMarin Indemnitees” shall mean BioMarin Acquisition and BioMarin.

“BioMarin Share” shall mean a share of BioMarin Common Stock.

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“Breach” means an inaccuracy in or breach of, or any failure to comply with or perform, a representation, warranty, covenant, obligation or other provision.

“Business Day” shall mean any day excluding Saturday, Sunday and any day which shall be in the State of New York a legal holiday or a day on which banking institutions are authorized by law to close.

“Code” shall mean the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.

“Commission” shall mean the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act.

“Confidentiality Agreement” shall mean that certain Confidentiality Agreement by and among Medicis, Ascent, Medicis Manufacturing, BioMarin and BioMarin Acquisition, dated as of the date hereof.

“Consent” shall mean any approval, consent, ratification, permission, waiver, authorization, filing, registration or notification (including any Governmental Authorization).

“Contract” shall mean any written, oral, implied or other agreement, contract, understanding, arrangement, instrument, note, guaranty, indemnity, deed, assignment, power of attorney, certificate, purchase order, work order, insurance policy, benefit plan, commitment, covenant, assurance or undertaking of any nature.

“Damages” shall include any loss, damage, injury, Liability, claim, demand, settlement, judgment, award, fine, penalty, Tax, fee (including reasonable legal fees, expert fees, accounting fees or advisory fees), charge, cost (including reasonable costs of investigation) or expense of any nature.

“Development Know How” shall mean technical, scientific and medical information, knowledge, know-how, inventions and trade secrets, that are necessary for the development, registration, manufacturing, packaging, stability, bioavailability, formulation, sale, use or commercialization of the products claimed in the Development Patents, owned by Ascent or its Affiliates, as of the Effective Date.

“Development Patents” shall mean all the United States and foreign patents and utility models, invention registrations, supplementary protection certificates and applications therefor listed in Part L-1.1(t) of the Ascent Disclosure Schedule and all reissues, divisionals, renewals, extensions, provisionals, continuations, and continuations-in-part thereof.

“Development Technology” shall mean the Development Patents and the Development Know How.

“Domain Name and Web Site License Agreement” shall mean that certain Domain Name and Web Site License Agreement among BioMarin, BioMarin Acquisition, Ascent and Medicis dated as of May 18, 2004.

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“Dual Use Know How” shall mean technical, scientific and medical information, knowledge, know-how, inventions and trade secrets, which (a) (i) is owned by Ascent or its Affiliates and pertain or relate to both oral liquid prednisolone solution products and the Primsol product previously marketed by Ascent under Abbreviated New Drug Application 74-973 or (ii) is controlled by or licensed to Ascent or its Affiliates on a non-exclusive basis, and is sublicensable to a third party by Ascent or its Affiliates but is not owned by Ascent or its Affiliates and (b) is necessary for, used in or related to the development, registration, manufacturing, formulation, sale, use and commercialization of oral liquid prednisolone solution products.

“Employee Benefit Plan” shall have the meaning specified in Section 3(3) of ERISA and each other employee benefit plan, program or arrangement at any time maintained, sponsored or contributed to (or required to be contributed to) by Medicis or any of its Affiliates or ERISA Affiliates or with respect to which Medicis or any of its Affiliates has any liability or potential liability.

“Encumbrance” shall mean any lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance, equitable interest, claim, preference, right of possession, lease, license, covenant, infringement, Order, proxy, option, right of first refusal, preemptive right, legend, defect, impediment, exception, reservation, limitation, impairment, imperfection of title, condition or restriction of any nature (including any restriction on the transfer of any asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).

“Entity” shall mean any corporation (including any non profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, cooperative, foundation, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization or entity.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended and any regulations promulgated thereunder.

“ERISA Affiliate” shall mean any Person that is, was or would be treated as a single employer with Medicis, Ascent or any of their Affiliates under Section 414 of the Code.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and any regulations promulgated thereunder.

“GAAP” shall mean generally accepted accounting principles as applied in the United States.

“Governmental Authorization” shall mean any permit, license, certificate, franchise, concession, approval, consent, ratification, permission, clearance, confirmation, endorsement, waiver, certification, designation, rating, registration, qualification or authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Body or pursuant to any Legal Requirement.

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“Governmental Body” shall mean any United States federal, state or local judicial, legislative, executive or other regulatory authority.

“HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and any regulations promulgated thereunder.

“Improvements” means any and all inventions, improvements, discoveries, enhancements, extensions, replacements, developments, refinements, or modifications to the Technology or the Development Technology, or utilizing the Technology or the Development Technology, or the respective use or the manufacturing processes therefor, whether or not patentable, which may be conceived, made, developed or otherwise controlled by BioMarin Acquisition or its Affiliates during the term of the License Agreement including, without limitation, modifications in size, package forms, dosage strength, methods for administration, methods for delivering, or changes in the formulation including the addition of actives to products.

“Indemnified Parties” shall mean the Medicis Indemnitees or the BioMarin Indemnitees, as the case may be.

“Indemnifying Parties” shall mean Medicis or BioMarin, as the case may be.

“Intellectual Property” shall mean the Trademarks and the Technology.

“Intellectual Property Assets” means the Technology, the Development Technology, the Trademarks and the Improvements.

“Know How” shall mean technical, scientific and medical information, knowledge, know-how, inventions and trade secrets, that are necessary for the development, registration, manufacturing, packaging, stability, bioavailability, formulation, sale, use or commercialization of ORAPRED^® and the “Licensed Products” (as defined in the Development, Commercialization and License Agreement between Ascent Pediatrics Inc. and Cima Labs Inc.), as the case may be, including, without limitation: (a) physiochemical data, specifications, quality control information and procedures; (b) market research data solely to the extent Ascent has the right to assign such data to BioMarin Acquisition; and (c) information concerning the clinical, toxicological and pharmacological properties with respect to all of the foregoing, owned by Ascent or its Affiliates, as of the Effective Date; provided that Know How shall not include Dual Use Know How.

“Knowledge” An individual shall be deemed to have “Knowledge” of a particular fact or other matter if such individual is actually aware of such fact or other matter. Each of Ascent or Medicis shall be deemed to have “Knowledge” of a particular fact or other matter if any officer or individual identified on Exhibit F hereto has Knowledge of such fact or other matter. Each of BioMarin Acquisition or BioMarin shall be deemed to have “Knowledge” of a particular fact or other matter if any officer or individual identified on Exhibit G hereto has Knowledge of such fact or other matter.

“Legal Requirement” shall mean any applicable order, writ, injunction, judgment, decree, statute, rule or regulation of any Governmental Body.

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“Liability” shall mean any debt, obligation, liability of any nature (including any unknown, undisclosed, unmatured, unaccrued, unasserted, contingent, indirect, conditional, derivative, joint, several or secondary liability), regardless of whether such debt, obligation or liability would be required to be disclosed on a balance sheet prepared in accordance with generally accepted accounting principles and regardless of whether such debt, obligation or liability is immediately due and payable.

“License Agreement” shall mean that certain License Agreement by and among BioMarin, BioMarin Acquisition, Medicis and Ascent, dated as of the date hereof.

“Litigation Matters” shall mean those matters set forth on Exhibit H hereto.

“Lyne License” shall mean that certain License Agreement between Ascent and Lyne Laboratories, Inc. dated May 21, 2001 (without regard to any amendment or modification thereof subsequent to the date hereof).

“Material Adverse Effect” With respect to Medicis and/or Ascent, an “Ascent Material Adverse Effect” means any event, circumstance, condition, development or occurrence causing, resulting in or having a material adverse effect on Ascent, the Intellectual Property, or the Pediatrics Business, taken as a whole; provided that in no event shall any of the following be deemed to constitute or be taken into account in determining an Ascent Material Adverse Effect: any event, circumstance, change or effect that results from (A) changes affecting the economy generally, (B) changes in the pharmaceutical industry as a whole or in the market for oral liquid prednisolone solution products or oral dissolving tablet prednisolone products, (C) the public announcement or pending nature of the transactions contemplated hereby, or (D) any adverse judgment, verdict or Order relating to the Litigation Matters (provided that this clause (D) shall not restrict or modify the conditions set forth in Sections 5.1, 5.3 and 5.4). With respect to BioMarin and/or BioMarin Acquisition, a “BioMarinMaterial Adverse Effect” means any event, circumstance, condition, development or occurrence causing, resulting in or having a material adverse effect on the business, condition, capitalization, assets, liabilities, operations or financial performance of BioMarin, taken as a whole; provided that in no event shall any of the following be deemed to constitute or be taken into account in determining a BioMarin Material Adverse Effect: any event, circumstance, change or effect that results from (x) changes affecting the economy generally, (y) changes in the pharmaceutical industry as a whole, or (z) the public announcement or pending nature of the transactions contemplated hereby.

“Medicis Indemnitees” shall mean Medicis.

“Medicis Manufacturing” shall mean Medicis Manufacturing Corporation, a Delaware corporation.

“ORAPRED^®” means a product having the approved prednisolone sodium phosphate oral solution formulation, 15mg (base)/5ml as set forth under Abbreviated New Drug Application 75-117.

“Order” shall mean any order, judgment, injunction, decree, ruling, decision, opinion, verdict, sentence, writ or award issued, made, entered, rendered or otherwise put into effect by or

A-5

under the authority of any court, administrative agency or other Governmental Body or any arbitrator or arbitration panel.

“Ordinary Course of Business” An action taken by or on behalf of Ascent or Medicis shall not be deemed to have been taken in the “Ordinary Course of Business” unless such action is regularly recurring in nature and is consistent with the past practices of Ascent or Medicis in the conduct of the Pediatrics Business.

“Option Term” shall mean the period commencing the Effective Date and ending on the earlier to occur of (i) the Option Closing Date, or (ii) the termination date of this Agreement.

“Pediatrics Business” means the business of making, manufacturing, marketing, selling, distributing and/or developing ORAPRED^®, certain oral liquid prednisolone solution products and oral dissolving tablet prednisolone products.

“Permitted Encumbrances” shall mean the Lyne License, Permitted Liens and the Security Agreement.

“Permitted Liens” shall means liens for Taxes, assessments and other governmental charges which are not due and payable or which my hereafter be paid without penalty or which are being contested in good faith by appropriate proceedings.

“Person” shall mean any individual, Entity or Governmental Body.

“Proceeding” shall mean any claim, action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Body or any arbitrator or arbitration panel.

“Products” shall mean any product or method made, used, imported, offered for sale, distributed or sold which, if in the course of such manufacture, use, importation, offer for sale, distribution or sale, would, in the absence of the License Agreement, infringe or misappropriate one or more of the Intellectual Property Assets.

“Representatives” shall mean officers, directors, employees, agents, attorneys, accountants, advisors and representatives.

“Secondary ANDA” shall mean the Abbreviated New Drug Application numbered 75-250, together with all amendments, modifications, supplements and updates thereto.

“Securities Act” shall mean the Securities Act of 1933, as amended, and the regulations promulgated thereunder.

“Security Agreement” shall mean that certain Trademark Security Agreement by and between Ascent and BioMarin Acquisition, dated as of the date hereof.

“Subsidiary” shall mean with respect to any Person, any other Person (a) of which the initial Person directly or indirectly owns or controls more than 50% of the voting equity interests

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or has the power to elect or direct the election of a majority of the members of the governing body of such Person or (b) which is required to be consolidated with such Person under generally accepted accounting principles.

“Supply Agreement” shall mean that certain supply agreement by and between BioMarin Acquisition and Medicis Manufacturing dated as of the date hereof, including any subcontracts related thereto.

“Taste Masking Related Patents” shall mean all the United States and foreign patents and utility models, invention registrations, supplementary protection certificates and applications therefor listed in Part L-1.1(jjj) of the Ascent Disclosure Schedule and all reissues, divisionals, renewals, extensions, provisionals, continuations, and continuations-in-part thereof.

“Tax” shall mean any tax (including any income tax, franchise tax, capital gains tax, estimated tax, gross receipts tax, value added tax, surtax, excise tax, ad valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business tax, occupation tax, inventory tax, occupancy tax, withholding tax or payroll tax), levy, assessment, tariff, impost, imposition, toll, duty (including any customs duty), deficiency or fee, and any related charge or amount (including any fine, penalty or interest), that is, has been or may in the future be (a) imposed, assessed or collected by or under the authority of any Governmental Body, or (b) payable pursuant to any tax sharing agreement or similar Contract.

“Tax Return” shall mean any return (including any information return), report, statement, declaration, estimate, schedule, notice, notification, form, election, certificate or other document or information that is, has been or may in the future be filed with or submitted to, or required to be filed with or submitted to, any Governmental Body in connection with the determination, assessment, collection or payment of any Tax or in connection with the administration, implementation or enforcement of or compliance with any Legal Requirement relating to any Tax.

“Technology” shall mean the Taste Masking Related Patents and the Know How.

“Trademarks” shall mean all business names, trade names, logos, common law trademarks and service trademarks, trademark and service mark registrations and applications therefor as set forth on Part L-1.1 (oo) of the Ascent Disclosure Schedule.

“Transaction Agreements” shall mean this Agreement and the Escrow Agreement.

“Transition Services Agreement” shall mean that certain Transition Services Agreement by and among Medicis, Ascent, BioMarin and BioMarin Acquisition, dated as of the date hereof.

Other defined terms are located in the Agreement as follows:

Defined Term	Page No.
Ascent	1
Ascent Common Stock	7

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Ascent Liabilty	5
BioMarin	1
BioMarin Acquisition	1
BioMarin Breach	29
BioMarin Cap	32
BioMarin Common Stock	12
BioMarin Filings	14
BioMarin Payment Shares	3
BioMarin Registration Indemnified Parties	23
Cash Option Payment	3
Effective Date	1
Enforceability Exception	7
Escrow Agreement	6
Escrow Cash	5
Escrow Share Price	6
Escrow Shares	6
Estimated Damages	5
Independent Appraiser	5
Liabilities Notice	5
Medicis	1
Medicis Breach	29
Medicis Cap	31
Medicis Registration Indemnified Parties	23
Notice of Acceleration	2
Notice of Non-Exercise	2
Obligations	39
Option	1
Option Closing	4
Option Closing Date	1
Option Shares	1
Registration Indemnified Parties	24
Resolution Period	5
Restricted Stock	21
Suspension Period	21
Target Closing Date	1
Third Party Claim	33

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The following exhibits and schedules are omitted in reliance upon Item 601(b)(2) of Regulation S-K. The Registrant will supplementally furnish a copy of such omitted schedules and exhibits to the Securities and Exchange Commission upon its request.

Ascent Disclosure Schedule

Exhibit B - Form of Escrow Agreement

Exhibit C - Form of Opinion from Akin Gump

Exhibit D - Form of Mutual Release Between Ascent and Medicis

Exhibit E - Form of Opinion of Paul Hastings

Exhibit F - Medicis and Ascent Knowledge

Exhibit G - BioMarin and BioMarin Acquisition Knowledge

Exhibit H - Litigation Matters

EX-2.3

Exhibit 2.3

LICENSE AGREEMENT

This LICENSE AGREEMENT (“Agreement”) is entered into as of May 18, 2004 (the “Effective Date”) by and among BioMarin Pharmaceutical Inc., a Delaware corporation (“BioMarin”), BioMarin Pediatrics Inc., a Delaware corporation and wholly-owned subsidiary of BioMarin (“BioMarin Acquisition” or “Licensee”), Medicis Pharmaceutical Corporation, a Delaware corporation (“Medicis”), and Ascent Pediatrics, Inc., a Delaware corporation (“Ascent” or “Licensor”), a wholly-owned subsidiary of Medicis. Each is referred to herein as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, Ascent is the sole and exclusive owner or has control of the entire right, title, and interest, together with all goodwill connected therewith, in and to the Licensed Technology, Licensed Trademarks and Licensed Development Technology (each as defined below);

WHEREAS, Ascent wishes to grant to BioMarin Acquisition, and BioMarin Acquisition wishes to receive, an exclusive, worldwide, license to such Licensed Technology, Licensed Trademarks and Licensed Development Technology under the terms and conditions set forth herein; and

WHEREAS, this Agreement is entered into as a condition to the consummation of the transactions contemplated under the Asset Purchase Agreement (as defined below) by and among BioMarin, BioMarin Acquisition, Medicis and Ascent.

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and promises contained herein, the Parties hereby agree as follows:

1. DEFINITIONS

1.1 Definitions. In addition to the terms defined in the text of this Agreement, the following terms shall have the following respective definitions:

(a) “Affiliate” means with respect to any Person, any other Person controlling, controlled by or within common control with such Person. Without limiting the foregoing, Ascent is an Affiliate of Medicis and Medicis is an Affiliate of Ascent, and BioMarin is an Affiliate of BioMarin Acquisition and BioMarin Acquisition is an Affiliate of BioMarin.

(b) “ANDA” means Abbreviated New Drug Application 75-117 for prednisolone sodium phosphate oral solution formulation, 15mg (base)/ 5ml, together with all amendments, modifications, supplements and updates thereto.

(c) “Ascent Indemnitees” means Ascent and Medicis.

(d) “Ascent Merger Agreement” means that certain Agreement and Plan of Merger among Medicis, MPC Merger Corp. and Ascent, dated October 1, 2001.

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(e) “Ascent Technical Assistance” means the technical assistance and training to be provided by Ascent hereunder that is reasonably necessary to enable BioMarin Acquisition to utilize and in order to disclose fully the Licensed Technology and Licensed Development Technology in connection with the Pediatric Business as it was conducted by Ascent immediately prior to the Effective Date.

(f) “Asset Purchase Agreement” means that certain asset purchase agreement among BioMarin, BioMarin Acquisition, Ascent and Medicis dated as of April 20, 2004.

(g) “Bankruptcy Proceeding” means any case or proceeding commenced by or against any Person under any provision of the U.S. Bankruptcy Code (title 11 of the United States Code, as in effect from time to time) or under any other state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.

(h) “BioMarin Indemnitees” means BioMarin Acquisition and BioMarin.

(i) “BioMarin Share” means a share of BioMarin’s common stock, par value $.001 per share.

(j) “Breach” means an inaccuracy in or breach of, or any failure to comply with or perform, a representation, warranty, covenant, obligation or other provision.

(k) “Business Day” means any day excluding Saturday, Sunday and any day which shall be in the State of New York a legal holiday or a day on which banking institutions are authorized by law to close.

(l) “Cash Deposit” means $25 million.

(m) “CDA” means that certain Confidentiality Agreement by and among the Parties and Medicis Manufacturing Corporation, a Delaware corporation, dated as of the date hereof.

(n) “Closing” means the “Closing” as defined in the Asset Purchase Agreement.

(o) “Commission” means the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act.

(p) “Contingent Payments Reimbursement Payments” means the Quarterly Contingent Payments Reimbursement Payments payable pursuant to Section 4.1(b).

(q) “Contract” means any written, oral, implied or other agreement, contract, understanding, arrangement, instrument, note, guaranty, indemnity, deed, assignment, power of attorney, certificate, purchase order, work order, insurance policy, benefit plan, commitment, covenant, assurance or undertaking of any nature.

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(r) “Damages” shall include any loss, damage, injury, Liability, claim, demand, settlement, judgment, award, fine, penalty, Tax, fee (including reasonable legal fees, expert fees, accounting fees or advisory fees), charge, cost (including reasonable costs of investigation) or expense of any nature.

(s) “Development Know How” shall mean technical, scientific and medical information, knowledge, know-how, inventions and trade secrets, that are necessary for the development, registration, manufacturing, packaging, stability, bioavailability, formulation, sale, use or commercialization of the products claimed in the Development Licensed Patents, owned by Ascent or its Affiliates, as of the Effective Date.

(t) “Development Licensed Patents” means all the United States and foreign patents and utility models, invention registrations, supplementary protection certificates and applications therefor listed in Schedule 1.1(t) and all reissues, divisionals, renewals, extensions, provisionals, continuations, and continuations-in-part thereof.

(u) “Dual Use Know How” shall mean technical, scientific and medical information, knowledge, know-how, inventions and trade secrets which (a) (i) is owned by Ascent or its Affiliates and pertain or relate to both oral liquid prednisolone solution products and the Primsol product previously marketed by Ascent under Abbreviated New Drug Application 74-973 or (ii) is controlled by or licensed to Ascent or its Affiliates on a non-exclusive basis, and is sublicensable to a third party by Ascent or its Affiliates but is not owned by Ascent or its Affiliates and (b) is necessary for, used in or related to the development, registration, manufacturing, formulation, sale, use and commercialization of oral liquid prednisolone solution products.

(v) “Encumbrance” shall mean any lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance, equitable interest, claim, preference, right of possession, lease, license, covenant, infringement, Order, proxy, option, right of first refusal, preemptive right, legend, defect, impediment, exception, reservation, limitation, impairment, imperfection of title, condition or restriction of any nature (including any restriction on the transfer of any asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).

(w) “Entity” means any corporation (including any non profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, cooperative, foundation, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization or entity.

(x) “Escrow Agent” means U.S. Bank, N.A., or such other escrow agent as mutually agreed to by Medicis and BioMarin.

(y) “Escrow Agreement” means that certain Escrow Agreement entered into by and among Medicis, Ascent and the Escrow Agent in substantially the form attached hereto as Exhibit A.

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(z) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and any regulations promulgated thereunder.

(aa) “FDA” shall mean the United States Food and Drug Administration.

(bb) “Governmental Body” means any United States federal, state or local judicial, legislative, executive or other regulatory authority.

(cc) “Improvements” means any and all inventions, improvements, discoveries, enhancements, extensions, replacements, developments, refinements, or modifications to the Licensed Technology or the Licensed Development Technology, or utilizing the Licensed Technology or the Licensed Development Technology, or the respective use or the manufacturing processes therefor, whether or not patentable, which may be conceived, made, developed or otherwise controlled by Licensee or its Affiliates during the License Term including, without limitation, modifications in size, package forms, dosage strength, methods for administration, methods for delivering, or changes in the formulation including the addition of actives to products.

(dd) “Indemnified Parties” means the Ascent Indemnitees or the BioMarin Indemnitees, as the case may be.

(ee) “Indemnifying Parties” means Ascent or BioMarin, as the case may be.

(ff) “Knowledge” An individual shall be deemed to have “Knowledge” of a particular fact or other matter if such individual is actually aware of such fact or other matter. Each of Ascent or Medicis shall be deemed to have “Knowledge” of a particular fact or other matter if any officer or individual identified on Exhibit B hereto has Knowledge of such fact or other matter. Each of BioMarin Acquisition or BioMarin shall be deemed to have “Knowledge” of a particular fact or other matter if any officer or individual identified on Exhibit C hereto has Knowledge of such fact or other matter.

(gg) “Legal Requirement” means any applicable order, writ, injunction, judgment, decree, statute, rule or regulation of any Governmental Body.

(hh) “Liability” means any debt, obligation, liability of any nature (including any unknown, undisclosed, unmatured, unaccrued, unasserted, contingent, indirect, conditional, derivative, joint, several or secondary liability), regardless of whether such debt, obligation or liability would be required to be disclosed on a balance sheet prepared in accordance with generally accepted accounting principles and regardless of whether such debt, obligation or liability is immediately due and payable.

(ii) “License Payments” means the Closing License Payment, the First Year Quarterly License Payments, the Second Year Quarterly License Payments, the Third and Fourth Year Quarterly License Payments and the Fifth Year Quarterly License Payments.

(jj) “License Term” means the term defined in Section 11.1 of this Agreement.

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(kk) “Licensed Assets” means the Licensed Technology, the Licensed Development Technology, the Licensed Trademarks and the Improvements.

(ll) “Licensed Development Technology” means the Development Licensed Patents and the Development Know How.

(mm) “Licensed Products” means any product or method made, used, imported, offered for sale, distributed or sold which, if in the course of such manufacture, use, importation, offer for sale, distribution or sale, would, in the absence of this Agreement, infringe or misappropriate one or more of the Licensed Assets.

(nn) “Licensed Technology” means the Taste Masking Related Licensed Patents and the Product Know How.

(oo) “Licensed Trademarks” means all business names, trade names, logos, common law trademarks and service trademarks, trademark and service mark registrations and applications therefor as set forth on Schedule 1.1(oo).

(pp) “Litigation Matters” means those matters set forth in Exhibit D hereto.

(qq) “Lyne License” means that certain License Agreement by and between Ascent and Lyne Laboratories, Inc., dated as of May 21, 2001, without regard to any amendment or modification thereof subsequent to the date hereof.

(rr) “Material Adverse Effect” With respect to Medicis and/or Ascent, an “Ascent Material Adverse Effect” means any event, circumstance, condition, development or occurrence causing, resulting in or having a material adverse effect on the Licensed Assets, or the Pediatrics Business, taken as a whole; provided that in no event shall any of the following be deemed to constitute or be taken into account in determining an Ascent Material Adverse Effect: any event, circumstance, change or effect that results from (A) changes affecting the economy generally, (B) changes in the pharmaceutical industry as a whole or in the market for oral liquid prednisolone solution products or oral dissolving tablet prednisolone products, (C) the public announcement or pending nature of the transactions contemplated hereby, or (D) any adverse judgment, verdict or Order relating to the Litigation Matters. With respect to BioMarin and/or BioMarin Acquisition, a “BioMarin Material Adverse Effect” means any event, circumstance, condition, development or occurrence causing, resulting in or having a material adverse effect on the business, condition, capitalization, assets, liabilities, operations or financial performance of BioMarin, taken as a whole; provided that in no event shall any of the following be deemed to constitute or be taken into account in determining a BioMarin Material Adverse Effect: any event, circumstance, change or effect that results from (x) changes affecting the economy generally, (y) changes in the pharmaceutical industry as a whole, or (z) the public announcement or pending nature of the transactions contemplated hereby.

(ss) “Materials” means all material files, documents (including either electronic or paper copies), specimens, records and other documentation maintained by or under the control of Ascent and/or any Ascent Affiliate(s) embodying Product Know How or Development Know How including, without limitation, all test results, clinical studies, data management, manufacturing processes, formulas, specifications, process development and

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non-clinical research, market studies, correspondence (including, without limitation, correspondence both to and from the Federal Drug Administration, United States Copyright Office, United States Patent and Trademark Office or any other Governmental Body), filings with the Food and Drug Administration, United States Copyright Office, United States Patent and Trademark Office or any other Governmental Body, customer and supplier records for the previous three years, and field force records for the previous three years.

(tt) “ORAPRED^®” means a product having the approved prednisolone sodium phosphate oral solution formulation, 15mg (base)/5ml as set forth under Abbreviated New Drug Application 75-117.

(uu) “Order” shall mean any order, judgment, injunction, decree, ruling, decision, opinion, verdict, sentence, writ or award issued, made, entered, rendered or otherwise put into effect by or under the authority of any court, administrative agency or other Governmental Body or any arbitrator or arbitration panel.

(vv) “Patents” means all United States and foreign patents and utility models, invention registrations, supplementary protection certificates and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof, and equivalent or similar rights anywhere in the world in inventions and discoveries.

(ww) “Pediatrics Business” means the business of making, manufacturing, marketing, selling, distributing and developing ORAPRED^® and certain oral liquid prednisolone solution products and oral dissolving tablet prednisolone products.

(xx) “Permitted Liens” shall mean liens for Taxes, assessments and other governmental charges which are not due and payable or which may hereafter be paid without penalty or which are being contested in good faith by appropriate proceedings.

(yy) “Person” means any individual, Entity or Governmental Body.

(zz) “Proceeding” means any claim, action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Body or any arbitrator or arbitration panel.

(aaa) “Product Know How”shall mean technical, scientific and medical information, knowledge, know-how, inventions and trade secrets, that are necessary for the development, registration, manufacturing, packaging, stability, bioavailability, formulation, sale, use or commercialization of ORAPRED^® and the “Licensed Products” (as defined in the Development, Commercialization and License Agreement between Ascent Pediatrics Inc. and Cima Labs Inc.), as the case may be, including, without limitation: (a) physiochemical data, specifications, quality control information and procedures; (b) market research data solely to the extent Ascent has the right to assign such data to BioMarin Acquisition; and (c) information concerning the clinical, toxicological and pharmacological properties with respect to all of the foregoing, owned by Ascent or its Affiliates, as of the Effective Date; provided that Product Know How shall not include any Dual Use Know How.

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(bbb) “Representatives” means officers, directors, employees, agents, attorneys, accountants, advisors and representatives.

(ccc) “Secondary ANDA” means the Abbreviated New Drug Application numbered 75-250, together with all amendments, modifications, supplements and updates thereto.

(ddd) “Securities Act” means the Securities Act of 1933, as amended, and the regulations promulgated thereunder.

(eee) “Securities Purchase Agreement” means that certain Securities Purchase Agreement among BioMarin, BioMarin Acquisition, Medicis and Ascent dated as of the Effective Date.

(fff) “Share Deposit” shall mean that number of BioMarin Shares with an aggregate value, as of the Effective Date, of $25 million, as measured by the average closing sales price per BioMarin Share over the twenty trading days ending May 12, 2004.

(ggg) “Subsequent ANDA” shall mean any Abbreviated New Drug Application filed by Ascent or BioMarin, in each case in Ascent’s name, following the Effective Date for which BioMarin Acquisition is the regulatory agent other than the ANDA and the Secondary ANDA.

(hhh) “Subsidiary” shall mean with respect to any Person, any other Person (a) of which the initial Person directly or indirectly owns or controls more than 50% of the voting equity interests or has the power to elect or direct the election of a majority of the members of the governing body of such Person or (b) which is required to be consolidated with such Person under generally accepted accounting principles.

(iii) “Supply Agreement” means that certain Supply Agreement by and between Medicis Manufacturing Corporation, a Delaware corporation, and BioMarin Acquisition dated as of the date hereof, and any subcontracts related thereto.

(jjj) “Taste Masking Related Licensed Patents” means all the United States and foreign patents and utility models, invention registrations, supplementary protection certificates and applications therefor listed in Schedule 1.1(jjj) and all reissues, divisionals, renewals, extensions, provisionals, continuations, and continuations-in-part thereof.

(kkk) “Tax” means any tax (including any income tax, franchise tax, capital gains tax, estimated tax, gross receipts tax, value added tax, surtax, excise tax, ad valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business tax, occupation tax, inventory tax, occupancy tax, withholding tax or payroll tax), levy, assessment, tariff, impost, imposition, toll, duty (including any customs duty), deficiency or fee, and any related charge or amount (including any fine, penalty or interest), that is, has been or may in the future be (a) imposed, assessed or collected by or under the authority of any Governmental Body, or (b) payable pursuant to any tax sharing agreement or similar Contract.

(lll) “Territory” shall mean worldwide.

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(mmm) “Transaction Agreements” means: (a) this Agreement; (b) the Escrow Agreement; and (c) the Security Agreement.

(nnn) “Transition Services Agreement” means that certain Transition Services Agreement by and among the parties of even date herewith.

1.2 Other Defined Terms.

Other defined terms are located in the Agreement as follows:

Defined Term	Page No.
Agreement	1
Ascent	1
Ascent Cap	33
Ascent Obligations	42
Ascent Registration Indemnified Parties	26
BioMarin	1
BioMarin Acquisition	1
BioMarin Acquisition Obligations	42
BioMarin Cap	34
BioMarin Registration Indemnified Parties	26
Claim Notice	32
Closing License Payment	16
Contingent Payments	9
Effective Date	1
Enforceability Exception	19
Fifth Year Quarterly License Payment	17
First Year Quarterly License Payment	17
First Year Quarterly Payment Date	17
Holder	24
License	9
License Term	30
Licensee	1
Licensor	1
Medicis	1
Parties	1
Party	1
Quarterly Contingent Payments Reimbursement Payment	17
Registration Indemnified Parties	26
Reporting Year	9
Restricted Stock	23
Second Year Quarterly License Payment	17
Security Agreement	10
Suspension Period	24
Third and Fourth Year Quarterly License Payment	17
Third Party Claim	35

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2. LICENSE GRANT

2.1 License Grant.

(a) Subject to the terms and conditions of this Agreement and the Lyne License, Ascent hereby grants to BioMarin Acquisition during the License Term, an exclusive, worldwide license (with the sole exception, for a period of thirty (30) days following the Effective Date, of the Commonwealth of Puerto Rico), with the right to sublicense, to and under the Licensed Assets to make, manufacture, develop, use, market, offer for sale, sell, distribute, import and export products, by itself and/or on its behalf, and to otherwise exploit the Licensed Assets during the License Term (the “License”). For avoidance of doubt, this License grant is for a limited term and shall not be considered an assignment.

(b) Subject to the terms and conditions of this Agreement, Ascent hereby grants to BioMarin Acquisition during the License Term, a non-exclusive, worldwide license (with the sole exception, for a period of thirty (30) days following the Effective Date, of the Commonwealth of Puerto Rico), with the right to sublicense, to and under the Dual Use Know How to make, manufacture, develop, use, market, offer for sale, sell, distribute, import and export products, by itself and/or its behalf, and to otherwise exploit the Dual Use Know How during the License Term. The term “License” shall not include the license granted under this Section 2.1(b).

2.2 License Scope. The License shall be exclusive to BioMarin Acquisition even as against Ascent and its Affiliates. Accordingly, neither Ascent nor any of its Affiliates shall during the License Term exercise or otherwise practice any of the rights granted to BioMarin Acquisition pursuant to the License.

2.3 Other Actions.

(a) To the extent any right, title or interest in or to any of the Licensed Technology, Licensed Development Technology or Licensed Trademarks is owned or controlled by an Affiliate of Ascent, Ascent covenants and agrees to promptly take whatever action is necessary to carry out the intent and purpose of the License.

(b) For so long as Medicis is obligated under the Ascent Merger Agreement for “Contingent Payments” (as that term is defined in the Ascent Merger Agreement) to the former shareholders of Ascent, BioMarin Acquisition shall, on or before December 10 in each calendar year, provide to Ascent a report containing the following with respect to the twelve month period beginning on December 1 of the previous year and ending on November 30 (each, a “Reporting Year”):

(i) the gross amount and unit quantities invoiced by BioMarin Acquisition or its subsidiaries, Affiliates, or sublicensees from or on account of sales of Licensed Products (as such term is defined in the Ascent Merger Agreement);

(ii) the aggregate of any (A) normal, customary trade discounts (including volume discounts) actually given or made, (B) credits, chargebacks, reductions, rebates, allowances and adjustments for rejections, recalls, outdated products and returns, (C)

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freight, shipping, insurance and other transportation charges, and (D) sales, use, excise, value-added and similar taxes or duties imposed on the sale (other than income taxes), in each case under clauses (A), (B), (C) and (D) with respect to Licensed Products (as such term is defined in the Ascent Merger Agreement); and

(iii) such other information reasonably necessary for Ascent to fulfill its obligations under the Ascent Merger Agreement.

(c) For a period of not less than three (3) years after the relevant calendar year in (b) above, BioMarin, BioMarin Acquisition and their Subsidiaries, Affiliates, licensees and sublicensees shall keep full, true and accurate books of account sufficient to determine the amounts pursuant to Section 2.3(b). Ascent shall have the right, not more than once during any calendar year and at its expense, to have the books and records of BioMarin, BioMarin Acquisition and their Subsidiaries, Affiliates, licensees or sublicensees audited by a qualified independent accounting firm of its choosing, under appropriate confidentiality provisions, solely for the purpose of ascertaining the accuracy of the reports under Section 2.3(b) and compliance by BioMarin, BioMarin Acquisition and their Subsidiaries, Affiliates, licensees or sublicensees with their obligations under this Agreement. In the event that there is a dispute with regard to the accounting reports, Ascent shall have the right to perform audits more frequently than once during a calendar year, and the prevailing party in such dispute shall have its costs related to the audit reimbursed by the other party. Any such audit shall be conducted upon at least ten (10) days’ advance notice to BioMarin Acquisition, during normal business hours and in a manner that does not interfere unreasonably with the business of the audited entity.

(d) Ascent shall not permit or allow any Licensed Assets to be subject to any Encumbrance other than this Agreement, the Lyne License, the Supply Agreement and the Security Agreement.

(e) BioMarin and BioMarin Acquisition shall not permit or allow this License Agreement to be subject to any Encumbrance.

(f) As security for the obligations of Ascent under this Agreement, pursuant to the terms of a Security Agreement in the form of Exhibit E (the “Security Agreement”) Ascent shall grant to BioMarin Acquisition a security interest in the Licensed Trademarks.

2.4 Licensee’s Efforts. BioMarin Acquisition shall use commercially reasonable efforts to market, promote and sell ORAPRED^®, which efforts shall include the allocation of efforts and resources consistent with the resources allocated by BioMarin Acquisition to the marketing, promotion and sale of other commercially available products of BioMarin Acquisition with comparable commercial opportunity in the marketplace. BioMarin Acquisition shall use commercially reasonable efforts to develop, market commercialize and sell Acetaminophen extended release sprinkles, Pediavent^® albuterol extended release suspension, and Non-refrigerated Orapred^® prednisolone sodium phosphate oral solution (15 mg prednisolone per 5 ml), which efforts shall include the allocation of efforts and resources consistent with the resources allocated by BioMarin Acquisition to the development, marketing, commercialization and sale of other in development products of BioMarin Acquisition with comparable commercial opportunity in the marketplace. Notwithstanding the foregoing, if the

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total of (x) the actual amount under Section 2.3(b)(i) minus (y) the actual amount under Section 2.3(b)(ii) exceeds $35,000,000 for each Reporting Year, then BioMarin Acquisition shall be deemed to have satisfied all of its obligations set forth in this Section 2.4.

2.5 Right to Reference ANDA. Subject to the terms and conditions of this Agreement and for the License Term, BioMarin Acquisition and its Affiliates and their sublicensees shall have an unrestricted right of reference to the ANDA listed on Schedule 2.5 and any Subsequent ANDA. Within ten (10) Business Days of the Effective Date, BioMarin Acquisition and Ascent shall each notify the FDA that BioMarin Acquisition shall act as regulatory agent for the ANDA. During the License Term, BioMarin Acquisition shall act as regulatory agent for the ANDA and Subsequent ANDAs, and during the License Term BioMarin Acquisition shall timely comply with all requirements under 21 CFR Part 203 (Prescription Drug Marketing Act), 21 CFR Part 314.70 (Supplements and Other Changes to an Approved Application), 21 CFR Part 314.80 (Post-Marketing Reporting of Adverse Drug Experiences) and 21 CFR Part 314.81 (Other Post-Marketing Reports). During the License Term, BioMarin Acquisition shall comply in all material respects with all Legal Requirements, including but not limited to 21 CFR Part 211 (Current Good Manufacturing Practices). BioMarin Acquisition shall assume responsibility for all FDA regulatory matters for products marketed under the ANDA and each Subsequent ANDA and BioMarin Acquisition and Ascent shall each send a letter to the FDA informing the FDA that BioMarin Acquisition has assumed such responsibility. Ascent shall provide BioMarin with all assistance and data, reports and other information reasonably requested by BioMarin Acquisition to assume such responsibilities.

2.6 Regulatory. During the License Term, BioMarin Acquisition shall maintain, at a location in the United States, complete and accurate books and records in sufficient detail as necessary for both BioMarin Acquisition and Ascent to meet their respective filing and other obligations with the FDA and any other applicable Governmental Body. BioMarin Acquisition shall provide to Ascent timely copies of all submissions to the FDA, including but not limited to, annual reports and adverse event reports. Not more than once per year and at such additional times as may be reasonably required to respond to FDA communications, upon not less than five (5) Business Days’ written notice to BioMarin Acquisition, Ascent shall have the right to review, at its expense, inspect, audit and make copies of any such books and records for purposes of verifying BioMarin Acquisition’s compliance with Sections 2.5 through 2.7. During the License Term, Ascent shall maintain, at a location in the United States, complete and accurate books and records related to ORAPRED^® in existence as of the Effective Date and all other information related to regulatory filings provided by BioMarin Acquisition to Ascent pursuant to this Section 2.6.

2.7 Adverse Reactions. The parties’ obligations relating to reporting Adverse Events shall be as set forth in the Transition Services Agreement by and among the parties hereto, dated as of the Effective Date.

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3. TRANSFER AND TRANSFER SUPPORT

3.1 Change of Party Names and Promotional Materials.

(a) As soon as reasonably practicable following the Effective Date, but no later than ten (10) Business Days following the Effective Date, BioMarin Acquisition, at its own expense, shall: (i) with Ascent’s reasonable cooperation and assistance, notify the FDA that BioMarin Acquisition is the marketer and distributor of ORAPRED^®; and (ii) use commercially reasonable efforts to commence taking any and all action necessary to change the National Drug Code number for ORAPRED^®.

(b) As soon as reasonably practicable, but no later than ten (10) Business Days following the Effective Date, BioMarin Acquisition and Ascent shall jointly notify the current manufacturers of ORAPRED^®, and any components thereof, the contents of which notification shall be mutually agreed upon, that all package inserts, labeling, and any components thereof, and packaging related thereto to be manufactured or ordered after the Effective Date, must be changed to identify BioMarin Acquisition as the marketer in the United States. BioMarin Acquisition shall use commercially reasonable efforts to ensure that such change takes effect for any new orders of ORAPRED^®, or components thereof, following the date that is twenty (20) Business Days following the Effective Date.

(c) Notwithstanding the foregoing, except as may be required by applicable law or the FDA, BioMarin Acquisition shall not be required by Ascent to change the labeling on any Product Inventory purchased by BioMarin Acquisition from Ascent or any components manufactured or being manufactured pursuant to purchase orders placed within thirty (30) calendar days following the Effective Date.

3.2 Advertising and Promotional Materials.

(a) As of the Effective Date: (i) BioMarin Acquisition shall be responsible for development of all new advertising and promotional materials related to the Licensed Products, all in compliance with all applicable regulatory agencies and other rules and regulations; and (ii) neither BioMarin Acquisition nor its Affiliates shall use any promotional and marketing materials with the corporate identifiers or trade names of Medicis.

(b) Within ten (10) Business Days following the Effective Date, BioMarin Acquisition and Ascent each shall submit a letter to the DDMAC division of FDA informing them that BioMarin Acquisition will be the new distributor of ORAPRED^® in the United States under license from Ascent and designating BioMarin Acquisition as the contact for review and discussion of all promotional materials related to ORAPRED^® in the United States, after which time BioMarin Acquisition will timely file with the appropriate regulatory agency, in accordance with all applicable laws and regulations, all promotional materials for ORAPRED^® required to be filed with such agency.

3.3 Technology Transfer. As of the Effective Date, Ascent shall deliver copies of Materials embodying the Product Know How to BioMarin Acquisition. No later than five (5) Business Days after the Effective Date, Ascent shall deliver copies of Materials embodying the Development Know How to BioMarin Acquisition.

3.4 Technology Transfer Support. Ascent Technical Assistance shall be provided as set forth in the Transition Services Agreement

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3.5 Trademark Use and Quality Control. During the License Term, BioMarin Acquisition agrees and acknowledges that: (a) neither Licensee nor its Affiliates shall have any interest, right, or title in the Licensed Trademarks other than the License; (b) neither Licensee nor its Affiliates shall obtain any rights in or to the Licensed Trademarks through Licensee’s or its Affiliate’s use in connection with the Licensed Products; (c) Ascent or its Affiliates, as the case may be, is and will continue to be the sole and exclusive owner of all right, title and interest in and to each Licensed Trademarks in any form or embodiment thereof; (d) all goodwill associated with or attached to the Licensed Trademarks arising out of the use thereof by Licensee and its Affiliates shall inure to the benefit of Ascent or its Affiliate, as applicable; and (e) the quality of the goods provided by Licensee under the Licensed Trademarks shall conform to applicable FDA standards for the applicable goods and shall be subject to a once a year independent third party inspection, upon reasonable notice to Licensee, of such goods upon which Licensed Trademarks appear. During the License Term, Licensee shall furnish at Licensee’s expense samples of packaging materials and other materials bearing the Licensed Trademarks for inspection and analysis as Ascent may reasonably request.

3.6 No Contest. During the License Term, Licensee agrees that neither Licensee nor its Affiliates will: (i) contest, oppose or challenge, or assist any party in contesting, opposing or challenging, Ascent’s or its Affiliate’s ownership of the applicable Licensed Trademarks or the distinctiveness or validity of the applicable Licensed Trademarks; (ii) at any time do or suffer to be done any act or thing that will in any way impair Ascent’s or its Affiliate’s ownership of or rights in and to the applicable Licensed Trademarks or any registration thereof; (iii) register or attempt to register any applicable Licensed Trademark in any jurisdiction; or (iv) oppose Ascent’s or its Affiliate’s registration of any applicable Licensed Trademark, alone or with other words or designs, in any jurisdiction. Upon the reasonable request of Ascent or its Affiliate, Licensee shall give Ascent or its Affiliate or an authorized Representative thereof all necessary information as to the use of the applicable Licensed Trademarks pursuant to this Agreement which Ascent or its Affiliate may reasonably require and will render any assistance reasonably required by Ascent or its Affiliate in maintaining the registrations of the applicable Licensed Trademarks.

3.7 Use of the Licensed Trademarks. Licensee agrees to comply in all material respects with all applicable laws and regulations pertaining to the proper use and designation of the Licensed Trademarks. Additionally, during the License Term, Licensee shall use commercially reasonable efforts to:

(a) use the Licensed Trademarks upon or in relation to the Licensed Products only in such manner that the distinctiveness, reputation, and validity of the Licensed Trademarks shall not be impaired. Without prejudice to the generality of the foregoing, Licensee shall ensure in particular that each Licensed Trademark is accompanied by words accurately describing the nature of the goods or services to which it relates, and ensure that each Licensed Trademark is displayed in accordance with Ascent’s guidelines, which are attached hereto as Schedule 3.7(a);

(b) display the proper form of trademark and service mark notice associated with the Licensed Trademarks; and

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(c) neither use nor display any of the Licensed Trademarks other than the “ASCENT” mark or the Ascent “People Logo” (U.S. Registration No. 2,510,806) in such relation to any other mark or trademarks owned by any third party or Licensee or its Affiliates as to suggest that the multiple Trademarks constitute a single or composite trademark, service mark, or are under the same proprietorship.

3.8 Maintaining Registrations. Licensee shall reimburse Ascent for all expenses reasonably incurred by Ascent or its Affiliate, during the License Term, in connection with maintenance of those Licensed Trademarks which are registered as of the Effective Date, including, but not limited to, filing all necessary maintenance and use documents, applying for renewal, and payment of any required periodic taxes or fees due in connection with such registrations. Ascent and its Affiliates shall not allow such Licensed Trademark registrations to lapse during the License Term, without the consent of Licensee. During the License Term, Ascent or its Affiliate, as applicable, shall execute any required documents, provide upon reasonable request any required records, and otherwise reasonably cooperate fully with Licensee as may be necessary to accomplish the recordation of the License in any jurisdiction within the Territory that Licensee seeks such recordation. In such event, the expenses for recordation will be borne by Licensee. At any time during the License Term Licensee shall execute any documents as shall be reasonably required by Ascent or its Affiliate to confirm Ascent’s or its Affiliate’s ownership of the Licensed Trademarks or to otherwise give effect to the provisions of this Article 3. Licensee acknowledges that the PEDIATUDE mark, Registration No. 2,153,138, will lapse effective April 21, 2004, if the United States Patent and Trademark Office does not accept specimens of use filed on or before such date.

3.9 Filing of New Registrations. At Licensee’s expense, Ascent, its Affiliate or outside trademark counsel selected by Ascent shall: (a) file additional trademark registration applications and related documents relating to the Licensed Trademarks at the written request of the Licensee; (b) promptly inform Licensee of communications from applicable trademark agencies; and (c) timely file Licensee’s responses to the communications from such trademark agencies. Ascent shall ensure that each filing described in clauses (a) and (c) above is submitted to the relevant trademark agency within fifteen (15) Business Days, or within ten (10) Business Days in the case of all submissions related to new applications, after the receipt by Ascent, its Affiliate or outside trademark counsel, as the case may be, of all information and documentation sufficient to make such filing. Licensor acknowledges and permits Licensee’s expansion of the scope of goods covered by the Licensed Trademarks. All rights, including goodwill, acquired in such expansion shall vest in Licensor and shall be deemed part of the Licensed Trademarks.

3.10 Enforcement of Licensed Trademarks.

(a) During the License Term, if either Party or its Affiliates becomes aware of actual or threatened infringement of any Licensed Trademark or of a mark or name confusingly similar to any Licensed Trademark, including without limitation by publication of a mark for opposition, such Party or its Affiliates shall promptly so notify the other Party in writing. BioMarin Acquisition or its Affiliates shall have the first right, but not the obligation, to enforce such Licensed Trademarks, including the right to bring opposition, infringement or unfair competition actions involving a Licensed Mark in the Territory at BioMarin Acquisition’s expense, provided that Ascent shall have the right to participate in such actions at Ascent’s

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expense. If Ascent participates in any such action, BioMarin Acquisition or its Affiliates shall have sole control of the conduct of any such action which it brings, provided that Ascent shall have the right to provide ongoing comments and advice regarding its position in such action, which comments shall be considered in good faith by BioMarin Acquisition. Ascent or its Affiliates shall, at the request and expense of BioMarin Acquisition or its Affiliates, cooperate and provide reasonable assistance in any action described in this Section and, if required by law, join such action. Any recovery or compensation resulting from such proceeding, including without limitation non-monetary rights, shall belong entirely to BioMarin Acquisition or its Affiliates less reimbursement to Ascent by BioMarin Acquisition or its Affiliates of any reasonable costs incurred by Ascent as a result of its participation in such action regardless of whether Ascent participated on its own or was joined in the action by BioMarin Acquisition. BioMarin Acquisition and its Affiliates shall not settle or accept any settlement from any third party without the prior written consent of Ascent, which consent shall not be unreasonably withheld or delayed.

(b) During the License Term, if (i) BioMarin Acquisition or its Affiliates fail to take action against such threatened or actual infringement within a reasonable period of no longer than sixty (60) calendar days from the date of receipt of written notice from Ascent or its Affiliates, and (ii) within such period of time, and no later than five (5) Business Days prior to the applicable deadline, BioMarin Acquisition or its Affiliates has not provided a commercially reasonable position for failing to take such action, Ascent or its Affiliates may thereafter take such action as it deems necessary to enforce its rights in and to the Licensed Trademark, including, without limitation, the right, but not the obligation, to bring, at its own expense, an infringement action or file any other appropriate action or claim related to infringement of the Licensed Trademark against any third party. BioMarin Acquisition or its Affiliates shall, at the request and expense of Ascent or its Affiliates, cooperate and provide reasonable assistance in any action described in this Section and, if required by law, join such action. In such events, the expenses for enforcement will be borne by Ascent or its Affiliates, and any recovery or compensation resulting from such proceeding, including without limitation non-monetary rights, shall belong entirely to Ascent or its Affiliates. Ascent and its Affiliates shall not settle or accept any settlement from any third party without the prior written consent of BioMarin Acquisition, which consent shall not be unreasonably withheld or delayed.

3.11 Third Party Trademark Litigation.

(a) During the License Term, in the event of (i) the initiation of any suit by a third party against Ascent or BioMarin Acquisition for trademark infringement involving the manufacture, use, sale, promotion or marketing of the Licensed Products in the Territory, or (ii) the institution of a trademark opposition, the Party sued or given notice of opposition shall promptly notify the other Party in writing, and BioMarin Acquisition shall have the right to defend such suit or opposition at its expense and BioMarin Acquisition shall provide Ascent with notice of its intent to defend or not defend such suit or opposition, provided that Ascent shall have the right to participate in such action at Ascent’s expense. If Ascent participates in such action, BioMarin Acquisition or its Affiliate shall have sole control of the conduct of any such action, provided that Ascent shall have the right to provide ongoing comments and advice regarding its position in such action, which comments shall be considered in good faith by BioMarin Acquisition. Ascent or its Affiliate shall, at the request and expense of BioMarin

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Acquisition or its Affiliate, cooperate and provide reasonable assistance in any action described in this Section and, if required by law, join such action. Any recovery or compensation resulting from such proceeding, including without limitation non-monetary rights, shall belong entirely to BioMarin Acquisition or its Affiliate less reimbursement to Ascent or its Affiliates by BioMarin Acquisition or its Affiliate of any reasonable costs incurred by Ascent or its Affiliates as a result of its participation in such action regardless of whether Ascent or its Affiliates participated on its own or was joined in the action. BioMarin Acquisition and its Affiliates shall not settle or accept any settlement from any third party without the prior written consent of Ascent, which consent shall not be unreasonably withheld or delayed.

(b) During the License Term, if (i) BioMarin Acquisition or its Affiliate fails to defend such suit or opposition within a reasonable period of no longer than thirty (30) calendar days from the date of receipt of written notice regarding the suit or opposition, or no later than five (5) Business Days prior to the applicable deadline, and (ii) within such period of time, BioMarin Acquisition or its Affiliate has not provided a commercially reasonable argument for failing to defend such suit, Ascent or its Affiliate may thereafter take such action as it deems necessary to defend and/or enforce its rights, including, without limitation, the right, but not the obligation, to bring, at its own expense, an infringement action or file any other appropriate action or claim related to infringement against any third party and Ascent or its Affiliate. BioMarin Acquisition or its Affiliate shall, at the request and expense of Ascent or its Affiliate, cooperate and provide reasonable assistance in any action described in this Section and, if required by law, join such action. In such events, the expenses for enforcement will be borne by Ascent or its Affiliate, and any recovery or compensation resulting from such proceeding, including without limitation non-monetary rights, shall belong entirely to Ascent or its Affiliate. Ascent and its Affiliates shall not settle or accept any settlement from any third party without the prior written consent of BioMarin Acquisition, which consent shall not be unreasonably withheld or delayed.

4. CONSIDERATION

4.1 License Payments. Subject to the terms and conditions set forth herein and in consideration for the grant of the License and the license granted under Section 2.1(b), BioMarin Acquisition shall pay to Ascent the License Payments and Contingent Payments Reimbursement Payments as set forth below. The Contingent Payments Reimbursement Payments are intended to be a reimbursement to Ascent for the contingent payments due to the former shareholders of Ascent pursuant to the Ascent Merger Agreement. The parties agree that the prompt payment of the License Payments are royalty payments as that term is used in Section 365(n)(2)(B) of the U.S. Bankruptcy Code.

(a) The License Payments shall total, in the aggregate, $93 million, and shall be paid as royalties as follows:

(i) Ten Million Dollars ($10,000,000) (the “Closing License Payment”), payable at the Closing;

(ii) Fifty Million Dollars ($50,000,000) in four quarterly installments of Twelve Million Five Hundred Thousand Dollars ($12,500,000) (each a “First Year Quarterly

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License Payment”), with one such installment payable on each of August 16, 2004, November 16, 2004, February 16, 2005 and May 16, 2005 (each, a “First Year Quarterly Payment Date”);

(iii) Ten Million Dollars ($10,000,000) in four quarterly installments of Two Million Five Hundred Thousand Dollars ($2,500,000) (each a “Second Year Quarterly License Payment”), with one such installment payable on each of August 16, 2005, November 16, 2005, February 16, 2006 and May 16, 2006;

(iv) Sixteen Million Dollars ($16,000,000) in eight quarterly installments of Two Million Dollars ($2,000,000) (each a “Third and Fourth Year Quarterly License Payment”), with one such installment payable on each of August 16, 2006, November 16, 2006, February 16, 2007, May 16, 2007, August 16, 2007, November 16, 2007, February 18, 2008 and May 16, 2008; and

(v) Seven Million Dollars ($7,000,000) in four quarterly installments of One Million Seven Hundred Fifty Thousand Dollars ($1,750,000) (each a “Fifth Year Quarterly License Payment”), with one such installment payable on each of August 18, 2008, November 17, 2008, February 17, 2009 and May 18, 2009.

(b) The Contingent Payments Reimbursement Payments shall total, in the aggregate, $15 million, and shall be paid as follows: Fifteen Million Dollars ($15,000,000) in six quarterly installments of Two Million Five Hundred Thousand Dollars ($2,500,000) (each a “Quarterly Contingent Payments Reimbursement Payment”), with one such installment payable on each of August 16, 2004, November 16, 2004, February 16, 2005, May 16, 2005, August 16, 2005 and November 16, 2005.

(c) As security for the payment of the First Year Quarterly License Payments, BioMarin Acquisition agrees to deposit the Cash Deposit and BioMarin agrees to deposit the Share Deposit on the Effective Date with the Escrow Agent pursuant to the terms and conditions of the Escrow Agreement. Pursuant to the Escrow Agreement, BioMarin may be required to deposit additional BioMarin Shares with the Escrow Agent. The Cash Deposit and the Share Deposit (and such additional BioMarin Shares as BioMarin may be required to deposit with the Escrow Agent in accordance with the Escrow Agreement) and all interest thereon shall be released by the Escrow Agent in accordance with the Escrow Agreement.

4.2 Loss of Exclusivity. In addition to the rights of Ascent pursuant to Section 11.2(a), in the event that BioMarin Acquisition fails to timely make any License Payment or Contingent Payments Reimbursement Payment, and such failure to pay is not cured within fifteen (15) Business Days of the due date thereof, the License granted herein shall automatically become non-exclusive as to Medicis and its Affiliates or sublicensees and the noncompetition provision of Section 6.2 hereof shall be of no further force and effect (except as shall be waived by Ascent so long as all outstanding payments have been made by BioMarin Acquisition, all interest has been paid thereon and Ascent has not licensed the Licensed Assets to any third party). If BioMarin Acquisition fails to timely make any payment due to Ascent under this Agreement, and such failure to pay is not cured within three (3) Business Days of the due date thereof, then interest shall accrue on a daily basis at the lesser of: (a) an annual rate equal to two

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percent (2%) above the reference rate of CitiBank, N.A., San Francisco, California, for the date that such payment was due; and (b) the maximum rate permitted by applicable law.

5. IMPROVEMENTS; DISCLOSURE OF IMPROVEMENTS

5.1 Improvements by BioMarin Acquisition. Any and all Improvements during the License Term shall be the responsibility (financial and otherwise) of BioMarin Acquisition and shall be the property of Ascent and, to the extent filed with the United States Patent and Trademark Office or other Governmental Body, shall be filed in the name of Ascent; provided, however, that such Improvements shall be included in the Licensed Technology or Licensed Development Technology, as applicable, without additional charge to BioMarin Acquisition. BioMarin Acquisition shall disclose such Improvements to Ascent pursuant to Section 5.2 below.

5.2 Disclosure. During the License Term, BioMarin Acquisition shall promptly disclose to Ascent any Improvements. Regarding each such Improvement, BioMarin Acquisition shall:

(a) Advise Ascent within sixty (60) days of BioMarin Acquisition’s receipt from an employee or third party of an invention disclosure for such Improvement;

(b) Permit Ascent’s or its Affiliates’ employees (and/or technical consultants who have signed a confidentiality agreement at least as restrictive as the CDA) to make such inspections of such Improvement as are reasonably acceptable to BioMarin Acquisition, at reasonable times and at Ascent’s expense;

(c) Have BioMarin Acquisition’s or BioMarin’s employees experienced in technical data relating to such Improvement impart to Ascent’s employees (and/or technical consultants) at reasonable times and at Ascent’s expense, information relative to such Improvement;

(d) Furnish Ascent with copies of drawings, schematics and other available technical data relative to the raw materials and equipment developed for or found suitable for use in such Improvement; and

(e) Furnish Ascent with copies of papers, documents and correspondence filed in or received from, the United States Patent and Trademark Office or other Governmental Body pertaining to those Patents or regulatory approvals that cover any aspect of such Improvement.

6. CONFIDENTIALITY AND NONCOMPETITION

6.1 Confidentiality. The CDA is hereby incorporated by reference.

6.2 Noncompetition. Each of Medicis and Ascent agrees that, in consideration of the consummation of the transactions by BioMarin Acquisition hereunder, it shall not and shall cause its Subsidiaries not to, at any time during the License Term, (whether acting alone or as a member of an Entity, and whether as an advisor, principal, consultant, independent contractor, agent, partner, employee, officer, director, 5% or greater equityholder or otherwise), anywhere in the world, (a) engage in, own, operate, maintain or finance directly or indirectly any business or

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other enterprise engaged in the development, distribution, sale or commercialization of an oral liquid prednisolone sodium solution or oral dissolving tablet prednisolone product other than the ownership, operation and maintenance of the Licensed Assets or the Secondary ANDA as contemplated under the Supply Agreement, provided, however, that neither Ascent nor Medicis shall make, manufacture, market, sell, distribute, or develop any product under the Secondary ANDA, or (b) other than the transactions contemplated by this Agreement, the Securities Purchase Agreement, the Asset Purchase Agreement, the Transition Services Agreement, the Supply Agreement or the Lyne License, take any action that is designed or intended or would reasonably be expected to have the effect of discouraging any customer, supplier, lessor, licensor or other business associate of the Pediatrics Business from maintaining a business relationship with BioMarin Acquisition after the Effective Date as it maintained with the Pediatrics Business prior to the Effective Date; provided, further, that Medicis may continue to own the outstanding stock of Ascent and Ascent may continue to own the Licensed Assets and all rights necessary to perform its obligations under the Lyne License, the Transition Services Agreement and the Supply Agreement; provided further that, notwithstanding the foregoing, (a) Medicis may enter into a transaction or series of transactions that involves the acquisition by Medicis of another Entity whose activities, but for this proviso would violate this Section 6.2 so long as such activities are not primary but are merely ancillary to such Entity’s activities so long as Medicis terminates or divests such activities within a reasonable period of time following such acquisition not to exceed 180 days, and (b) Medicis may be acquired by merger with another Entity, where the stockholders of Medicis immediately prior to the merger own less than 50% of the surviving entity, whose activities, but for this proviso, would violate this Section 6.2. If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 6.2 is invalid or unenforceable, the parties agree that the court making such determination of invalidity or unenforceability shall have the power to reduce the scope, duration or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

7. REPRESENTATIONS AND WARRANTIES OF ASCENT.

Ascent hereby represents and warrants, to and for the benefit of BioMarin Acquisition, that each of the following representations and warranties is true and correct as of the Effective Date:

7.1 Authority; Binding Nature of Agreements. Each of Ascent and Medicis has all corporate power and authority to enter into and to perform its obligations under this Agreement. The execution, delivery and performance by each of Ascent and Medicis of this Agreement have been duly authorized by all necessary action on the part of Ascent and Medicis and their stockholders, boards of directors and officers. This Agreement, assuming the due authorization, execution and delivery by the other parties hereto, constitutes the legal, valid and binding obligation of Ascent or Medicis, as applicable, enforceable against Ascent or Medicis, as applicable, in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereinafter in effect relating to creditors’ rights generally or to general principles of equity (the “Enforceability Exception”).

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7.2 Title to Assets.

(a) Ascent has good and valid title to all of the Licensed Trademarks, Licensed Technology and Licensed Development Technology. Except as identified in Schedule 7.2, none of the Licensed Technology, Licensed Trademarks or Licensed Development Technology is subject to any Encumbrance (including any tax-related Encumbrance), other than the Lyne License, the Supply Agreement, the Security Agreement, and any Permitted Liens.

(b) Ascent and/or its Affiliates has good and valid title to the Dual Use Know How.

7.3 Regulatory Matters. Ascent has not been debarred and is not subject to debarment and will not use in any capacity, in connection with the obligations to be performed under this Agreement, any person who has been debarred pursuant to section 306 of the FDCA, 21 U.S.C. 335a, or who is the subject of a conviction described in such section or who undergoes any analogous proceeding under foreign law.

7.4 Intellectual Property.

(a) Ascent is the sole and exclusive owner or has the authority to license and/or sell the Licensed Technology, Licensed Development Technology, and Licensed Trademarks;

(b) Except as identified in Schedule 7.2, Ascent has the right, power and authority to grant licenses under the Licensed Trademarks, Licensed Development Technology, and Licensed Technology to BioMarin Acquisition in accordance with the terms and conditions of this Agreement, free and clear of any Encumbrances, other than the Lyne License, the Supply Agreement, Permitted Liens and the Security Agreement;

(c) Ascent has not specifically admitted that any claim of an issued and unexpired patent or pending patent application included within the Taste Masking Related Licensed Patents is invalid or unenforceable through reissue or disclaimer (other than to the extent that any terminal disclaimer has been filed);

(d) Except as identified in Schedule 7.4(d), (i) neither Ascent nor its Affiliates have taken any action that materially and adversely affects the rights and licenses granted to BioMarin Acquisition under this Agreement, and (ii) neither Ascent nor its Affiliates have granted to any third party or Affiliate any rights or licenses that conflict with or materially and adversely affect the rights and licenses granted to BioMarin Acquisition under this Agreement,

(e) to the Knowledge of Ascent and Medicis, the issued Taste Masking Related Licensed Patents are valid and enforceable and the manufacture, development, marketing, distribution, importation, sale, offer for sale, disposition or use of ORAPRED^® as carried out by Ascent or its Affiliates immediately prior to the Effective Date does not and will not infringe any patent rights, trade secrets or other industrial or intellectual property rights of any third party or Affiliate of Ascent, excluding any Medicis corporate identifier or mark used therewith;

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(f) to the Knowledge of Ascent and Medicis, (i) no issued patent or patent application within the Taste Masking Related Licensed Patents or (ii) except as identified in Schedule 7.2, Licensed Trademark is involved in or is threatened to be involved in, any court proceeding, arbitration, interference, reissue, re-examination or opposition;

(g) except as identified in Schedule 7.2, there are no claims, judgments or settlements, either actual or, to the Knowledge of Ascent and Medicis, threatened, relating to the Taste Masking Related Licensed Patents, Licensed Trademarks and/or the Product Know-How;

(h) except as identified in Schedule 7.2, since November 15, 2001, to the Knowledge of Ascent and Medicis, no Person has infringed or misappropriated, and no Person is currently infringing or misappropriating, any Licensed Technology or Licensed Trademark;

(i) except as identified in Schedule 7.4(i), to the Knowledge of Ascent and Medicis, all filings and registrations related to the Licensed Trademarks are in good standing and all maintenance and renewal fees necessary to preserve the rights of Ascent in respect of the Licensed Trademarks have been paid;

(j) to the Knowledge of Ascent and Medicis, since November 15, 2001, (a) there has been no misappropriation of any material trade secrets used in connection with the Pediatrics Business, (b) no current employee, independent contractor or agent of Ascent or Medicis employed in the Pediatrics Business has misappropriated any material trade secrets of any other Person in the course of the performance of its duties as an employee, independent contractor or agent of Ascent or Medicis employed in the Pediatrics Business, and (c) no current employee, independent contractor or agent of Ascent or Medicis is in default or breach of any non-disclosure agreement, assignment of invention agreement or similar agreement or contract regarding the protection, ownership, development, use or transfer of the Licensed Technology;

(k) Ascent has taken reasonable steps in accordance with normal industry practice to maintain the confidentiality of its material trade secrets related to the Pediatrics Business; and

(l) Each current employee and current independent contractor of Ascent or Medicis who contributed to the conception or development of the Taste Masking Related Licensed Patents and Development Patents has executed a valid and binding assignment to Ascent or Medicis of all rights they may hold therein.

7.5 Investment Representations Regarding Ascent. To the extent that Ascent acquires BioMarin Shares subject to the Share Deposit:

(a) Ascent will acquire such BioMarin Shares for investment purposes, for its own account and not as nominee or agent for any other Person and not with a view to or for resale in connection with any distribution thereof within the meaning of the Securities Act.

(b) Ascent knows of no public solicitation or advertisement of an offer in connection with such BioMarin Shares.

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(c) Ascent has had the opportunity to ask questions of and receive answers from BioMarin concerning the terms and conditions of the BioMarin Shares subject to the Share Deposit. Ascent has received all information that it has requested regarding BioMarin and believes that such information is sufficient to make an informed decision with respect to the acquisition of the BioMarin Shares.

(d) Ascent is able to bear the economic risk of its investment in the BioMarin Shares and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of and protecting its interests with respect to its investment in the BioMarin Shares. Ascent is aware of the risk involved in its investment in the BioMarin Shares and has determined that such investment is suitable for Ascent in light of its financial circumstances and available investment opportunities.

(e) On the date hereof Ascent is, and on the date or dates that Ascent acquires any BioMarin Shares subject to the Share Deposit, Ascent will be an “accredited investor” as that term is defined in Rule 501 of Regulation D promulgated under the Securities Act.

(f) Ascent hereby further agrees with BioMarin that the instruments or certificates evidencing such BioMarin Shares and each instrument or certificate issued in transfer thereof will bear the following legend:

“The securities evidenced by this certificate have not been registered under the Securities Act of 1933 and have been taken for investment purposes only and not with a view to the distribution thereof, and, except as stated in an agreement between the holder of this certificate or its predecessor in interest, and the issuer corporation, such securities may not be sold or transferred unless there is an effective registration statement under such Act covering such securities or the issuer corporation receives an opinion, in form and content reasonably satisfactory to the issuer corporation, of counsel reasonably acceptable to the issuer corporation (which may be counsel for the issuer corporation) stating that such sale or transfer is exempt from the registration and prospectus delivery requirements of such Act.”

(g) The instruments or certificates representing the BioMarin Shares and each instrument or certificate issued in transfer thereof will also bear any legend required under any applicable state securities law.

(h) Prior to any proposed sale, assignment, transfer or pledge of any of the BioMarin Shares by Ascent, unless there is in effect a registration statement under the Securities Act covering the proposed transfer, Ascent shall give written notice to BioMarin of Ascent’s intention to effect such transfer, sale, assignment or pledge. Each such notice shall describe the manner and circumstances of the proposed transfer, sale, assignment or pledge in sufficient detail and shall be accompanied, at Ascent’s expense, by an unqualified written opinion of legal counsel, who shall and whose legal opinion shall be reasonably satisfactory to BioMarin (which may be counsel for BioMarin), addressed to BioMarin, to the effect that the proposed transfer of the Share Deposit may be effected without registration under the Securities Act, whereupon

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Ascent shall be entitled to transfer such Share Deposit in accordance with the terms of the notice delivered by Ascent to BioMarin.

(i) Ascent consents to BioMarin’s making a notation on its records or giving instructions to any transfer agent of the BioMarin Shares in order to implement the restrictions on transfer of the Share Deposit.

(j) Ascent is aware that the Share Deposit Shares are being issued and sold in reliance on an exemption from the registration requirements of the Securities Act and that such exemption is expressly conditioned on the accuracy of the representations and warranties contained in this Section 7.5.

(k) Ascent is not a company established solely to acquire the BioMarin Shares.

8. REPRESENTATIONS AND WARRANTIES OF BIOMARIN AND BIOMARIN ACQUISITION.

Each of BioMarin and BioMarin Acquisition represents and warrants jointly and severally, to and for the benefit of Ascent, that each of the following representations and warranties is true and correct as of the Effective Date.

8.1 Authority; Binding Nature of Agreements. Each of BioMarin and BioMarin Acquisition has the corporate power and authority to enter into and perform its obligations under this Agreement, and the execution and delivery by each of BioMarin and BioMarin Acquisition of this Agreement has been duly authorized by all necessary action on the part of each of BioMarin and BioMarin Acquisition and its stockholders, board of directors and officers. This Agreement, assuming the due authorization, execution and delivery by the other Parties hereto, constitutes the legal, valid and binding obligation of each of BioMarin and BioMarin Acquisition, enforceable against it in accordance with its terms, subject to the Enforceability Exception.

8.2 Regulatory Matters. BioMarin has not been debarred and is not subject to debarment and will not use in any capacity, in connection with the obligations to be performed under this Agreement, any person who has been debarred pursuant to section 306 of the FDCA, 21 U.S.C. 335a, or who is the subject of a conviction described in such section or who undergoes any analogous proceeding under foreign law.

9. REGISTRATION OF SHARES.

9.1 Registration. On or before the thirtieth day following the Effective Date, BioMarin shall prepare and file a registration statement on Form S-3 under the Securities Act, covering the Share Deposit (the “Restricted Stock”) and shall use its best efforts to cause such registration statement to become effective as expeditiously as possible and to remain effective until the earliest to occur of (i) the date the Restricted Stock covered thereby has been sold (but in any event not before the expiration of any longer period required under the Securities Act) or (ii) the date by which all Restricted Stock covered thereby may be sold under Rule 144 without restriction as to volume.

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9.2 Suspension. Following the effectiveness of a registration statement filed pursuant to this section, BioMarin may, at any time, suspend the effectiveness of such registration for up to thirty (30) days, as appropriate (a “Suspension Period”), by giving notice to Ascent (for the purposes of this Article 9, the “Holder”), if BioMarin shall have determined that BioMarin may be required to disclose any material corporate development. Notwithstanding the foregoing, no more than two Suspension Periods may occur during any twelve-month period. BioMarin shall use its best efforts to limit the duration and number of any Suspension Periods. The Holder agrees that, upon receipt of any notice from BioMarin of a Suspension Period, the Holder shall forthwith discontinue disposition of Restricted Stock pursuant to such registration statement or prospectus until the earlier of (A) the Holder (i) is advised in writing by BioMarin that the use of the applicable prospectus may be resumed, (ii) has received copies of a supplemental or amended prospectus, if applicable, and (iii) has received copies of any additional or supplemental filings which are incorporated or deemed to be incorporated by reference into such prospectus, and (B) thirty (30) days after receipt of the notice concerning the Suspension Period.

9.3 Registration Procedures. When BioMarin effects the registration of the Restricted Stock under the Securities Act pursuant to Section 9.1 hereof, BioMarin will, at its expense, as expeditiously as possible:

(a) In accordance with the Securities Act and the rules and regulations of the Commission, prepare and file in accordance with Section 9.1, with the Commission a registration statement with respect to the Restricted Stock and use its best efforts to cause such registration statement to become and remain effective for the period described herein, and prepare and file with the Commission such amendments to such registration statement and supplements to the prospectus contained therein as may be necessary to keep such registration statement effective for such period and such registration statement and prospectus accurate and complete for such period (provided that, before filing a registration statement or prospectus or any amendments or supplements thereto, BioMarin will furnish to the counsel selected by the Holder copies of the plan of distribution section of such prospectus proposed to be filed);

(b) Furnish to the Holder participating in such registration such reasonable number of copies of the registration statement, preliminary prospectus, final prospectus, each amendment and supplement thereto and such other documents as the Holder may reasonably request in order to facilitate the disposition of the Restricted Stock;

(c) Use its best efforts to register or qualify the Restricted Stock covered by such registration statement under such state securities or blue sky laws of such jurisdictions as the Holder may reasonably request except that BioMarin shall not for any purpose be required to execute a general consent to service of process or to qualify to do business as a foreign corporation in any jurisdiction where it is not so qualified;

(d) Notify the Holder, promptly after it shall receive notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a supplement to any prospectus forming a part of such registration statement has been filed;

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(e) Notify the Holder promptly of any request by the Commission for the amending or supplementing of such registration statement or prospectus or for additional information;

(f) Prepare and file with the Commission, promptly upon the request of the Holder, any amendments or supplements to such registration statement or prospectus which, in the opinion of counsel for the Holder, is required under the Securities Act or the rules and regulations thereunder in connection with the distribution of the Restricted Stock by the Holder;

(g) Prepare and promptly file with the Commission, and promptly notify the Holder of the filing of, such amendments or supplements to such registration statement or prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, any event has occurred as the result of which any such prospectus or any other prospectus as then in effect would include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;

(h) Advise the Holder, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such registration statement or the initiation or threatening of any proceeding for that purpose and promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;

(i) Cause all such Restricted Stock to be listed on each securities exchange on which similar securities issued by BioMarin are then listed and, if not so listed, to be listed on the Nasdaq National Market or any United States national securities exchange;

(j) Provide a transfer agent and registrar for all such Restricted Stock which shall be the transfer agent for the common stock of BioMarin not later than the effective date of such registration statement; and

(k) Otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of BioMarin’s first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.

With respect to any registration effected pursuant to Section 9.1 hereof, all fees, costs and expenses of and incidental to such registration and the public offering in connection therewith shall be borne by BioMarin; provided, however, that the Holder shall bear its own legal fees, if any, and its pro rata share of any underwriting discounts or commissions, if any.

9.4 Indemnification.

(a) BioMarin will indemnify and hold harmless the Holder, pursuant to the provisions of this Section 9.4, and any underwriter (as defined in the Securities Act) for the Holder, and any person who controls the Holder or such underwriter within the meaning of the

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Securities Act, and any officer, director, employee, agent, partner, member or affiliate of the Holder (for purposes of this Section 9.4, the “Ascent Registration Indemnified Parties”), from and against, and will reimburse each such Ascent Registration Indemnified Party with respect to, any and all claims, actions, demands, losses, damages, liabilities, costs and expenses to which such Ascent Registration Indemnified Party may become subject under the Securities Act or otherwise, insofar as such claims, actions, demands, losses, damages, liabilities, costs or expenses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such registration statement, any prospectus contained therein or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that BioMarin will not be liable in any such case to the extent that any such claim, action, demand, loss, damage, liability, cost or expense is caused by an untrue statement or alleged untrue statement or omission or alleged omission so made in strict conformity with information furnished by such Ascent Registration Indemnified Party in writing specifically for use in the preparation thereof.

(b) The Holder will indemnify and hold harmless BioMarin pursuant to the provisions of this Section 9.4, and any underwriter (as defined in the Securities Act) for BioMarin and any person who controls BioMarin or such underwriter within the meaning of the Securities Act, and any officer, director, employee, agent, partner, member or affiliate of BioMarin (for purposes of this Section 9.4, the “BioMarin Registration Indemnified Parties”, and together with the Ascent Registration Indemnified Parties, the “Registration Indemnified Parties”), from and against, and will reimburse each such BioMarin Registration Indemnified Party, and such controlling Persons with respect to, any and all claims, actions, demands, losses, damages, liabilities, costs or expenses to which such BioMarin Registration Indemnified Party may become subject under the Securities Act or otherwise, insofar as such claims, actions, demands, losses, damages, liabilities, costs or expenses are caused by any untrue or alleged untrue statement of any material fact contained in such registration statement, any prospectus contained therein or any amendment or supplement thereto, or are caused by the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made solely in reliance upon and in strict conformity with written information furnished by an Ascent Registration Indemnified Party specifically for use in the preparation thereof; provided, however, that the liability of the Holder shall be limited to an amount not to exceed the net proceeds received by the Holder pursuant to the registration statement which gives rise to such obligation to indemnify.

(c) Promptly after receipt by a party indemnified pursuant to the provisions of clause (a) or (b) of this Section 9.4 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such Registration Indemnified Party will, if a claim thereof is to be made against the indemnifying party pursuant to the provisions of clause (a) or (b) of this Section 9.4, notify the indemnifying party of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to a Registration Indemnified Party otherwise than under this Section 9.4 and shall not relieve the indemnifying party from liability under this Section 9.4 unless such indemnifying party is prejudiced by such omission. In case such action is brought against any Registration

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Indemnified Party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such Registration Indemnified Party, and after notice from the indemnifying party to such Registration Indemnified Party of its election so to assume the defense thereof, the indemnifying party will not be liable to such Registration Indemnified Party pursuant to the provisions of such clause (a) or (b) for any legal or other expense subsequently incurred by such Registration Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall be liable to a Registration Indemnified Party for any settlement of any action or claim without the consent of the indemnifying party. No indemnifying party will consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Registration Indemnified Party of a release from all liability in respect to such claim or litigation.

(d) If the indemnification provided for in clause (a) or (b) of this Section 9.4 is held by a court of competent jurisdiction to be unavailable to a party to be indemnified with respect to any claims, actions, demands, losses, damages, liabilities, costs or expenses referred to therein, then each indemnifying party under any such subsection, in lieu of indemnifying such Registration Indemnified Party thereunder, hereby agrees to contribute to the amount paid or payable by such Registration Indemnified Party as a result of such claims, actions, demands, losses, damages, liabilities, costs or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the Registration Indemnified Party on the other in connection with the statements or omissions which resulted in such claims, actions, demands, losses, damages, liabilities, costs or expenses, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the Registration Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the Registration Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount the Holder shall be obligated to contribute pursuant to this clause (d) shall be limited to an amount not to exceed the net proceeds received by the Holder pursuant to the registration statement which gives rise to such obligation to contribute. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution hereunder from any person who was not guilty of such fraudulent misrepresentation.

9.5 Reporting Requirements Under the Exchange Act. BioMarin shall timely file such information, documents and reports as the Commission may require or prescribe under Section 13 of the Exchange Act. BioMarin acknowledges and agrees that the purposes of the requirements contained in this Section 9.5 are to enable the Holder to comply with the current public information requirement contained in paragraph (c) of Rule 144 should the Holder ever wish to dispose of any of the Restricted Stock without registration under the Securities Act in reliance upon Rule 144 (or any other similar exemptive provision).

9.6 Stockholder Information. BioMarin may require the Holder to furnish BioMarin such information with respect to the Holder and the distribution of its Restricted Stock

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as BioMarin may from time to time reasonably request in writing as shall be required by law or by the Commission in connection therewith.

10. PATENT PROSECUTION AND THIRD PARTY INFRINGEMENT

10.1 Patent Prosecution.

(a) Prosecution. Commencing on the Effective Date and continuing during the License Term, BioMarin Acquisition shall use commercially reasonable efforts and diligence to file, prosecute, issue and maintain all registered intellectual property rights in and to the Taste Masking Related Licensed Patents and Development Licensed Patents in the name of Ascent and on behalf of Ascent, and may, with the prior written consent of Ascent, file and prosecute applications and otherwise pursue registration for any unregistered intellectual property rights in and to the Licensed Technology, Licensed Development Technology and Improvements and such new filings, applications, or the like shall be made in the name of and on behalf of Ascent. For avoidance of doubt, such new filings, applications, or the like shall be considered Taste Masking Related Licensed Patents, Development Licensed Patents or Improvements, as applicable, and shall be subject to the License and the terms and conditions of this Agreement. In connection with BioMarin Acquisition’s performance of its obligations under this Section 10.1, it shall promptly provide written notification and copies of all correspondence from Governmental Bodies or agencies to Ascent as well as promptly provide drafts of all replies for review by Ascent. In the event that BioMarin Acquisition elects not to file, prosecute or maintain any Taste Masking Related Licensed Patents, Development Licensed Patents and Improvements, it shall give reasonable written notice, not less than thirty (30) days after such election, to allow Ascent to file, prosecute or maintain such Taste Masking Related Licensed Patents, Development Licensed Patents and Improvements unless BioMarin Acquisition has provided to Ascent a commercially reasonable position for not taking such action. With regard to any Taste Masking Related Licensed Patents, Development Licensed Patents or Improvements that are subject to such written notice, upon the date of the notice, the exclusive license thereto shall be terminated and all Materials related thereto must be immediately returned to Ascent within ten (10) Business Days.

(b) Further Assurances. Ascent and/or Medicis shall execute and/or cause to be delivered to BioMarin Acquisition and shall take such other actions, as BioMarin Acquisition may reasonably request, at or after the Effective Date, at BioMarin Acquisition’s expense, for the purpose of evidencing, prosecuting, obtaining and maintaining all intellectual property rights in and to the Licensed Technology, Licensed Development Technology and Licensed Trademarks in any and all countries. Such acts may include, but are not limited to, execution of documents and making inventors and employees available to BioMarin Acquisition.

(c) Power of Attorney. Ascent and Medicis each hereby designates and appoints the officers of BioMarin Acquisition as their agents and attorneys-in-fact, respectively, to act for and on behalf and instead of Ascent and Medicis to execute and file any documents and to do all other lawfully permitted acts to further the purposes set forth in Section 10.1(a) above with the same legal force and effect as if executed by Ascent or Medicis, respectively; provided that such officers shall not be authorized to act for or on their behalf with respect to Taste Masking Related Licensed Patents, Development Licensed Patents or Improvements which

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BioMarin Acquisition has elected not to file, prosecute or maintain pursuant to Section 10.1(a). Each of Ascent and Medicis further acknowledge and agree that such power of attorney is a power of attorney coupled with an interest and is revocable only if (i) this Agreement expires, (ii) this Agreement is terminated, or (iii) the License becomes non-exclusive pursuant to Section 4.2.

10.2 Third Party Infringement.

(a) Notice. In the event that Ascent or its Affiliates, on the one hand, or BioMarin Acquisition or its Subsidiaries, or BioMarin, on the other hand, becomes aware of any actual or threatened infringement of any Licensed Technology or the Licensed Development Technology or has actual knowledge that any Licensed Technology is being infringed or misappropriated by a third party, or is subject to a declaratory judgment action arising from such infringement or misappropriation, it shall promptly notify the other party of all available details regarding such infringement or misappropriation with a written description thereof.

(b) BioMarin Acquisition’s Right to Control Proceedings. BioMarin Acquisition shall have the first right, but not the obligation, during the License Term, at its sole expense, to initiate and conduct legal proceedings to enforce the Licensed Technology, Licensed Development Technology or Improvements against infringement or misappropriation by third parties and to defend against any declaratory judgment action relating thereto; provided, however, that during the License Term: (i) Ascent shall receive prompt notice of such action and have the right to actively participate in any such action at Ascent’s expense; (ii) Ascent shall have the right to provide ongoing comments and advice regarding its position in such action, which comments shall be considered in good faith by BioMarin Acquisition; and (iii) BioMarin Acquisition shall not make any settlement or otherwise abandon any Licensed Technology, Licensed Development Technology or Improvements without the prior written consent of Ascent, which shall not be unreasonably withheld or delayed. Ascent shall timely execute all necessary and proper documents and take all other reasonable and appropriate action required for BioMarin Acquisition to initiate and prosecute such proceedings. If Ascent is a legally indispensable party to such action, Ascent shall join in such action at the request of BioMarin Acquisition. Ascent shall reasonably cooperate with BioMarin Acquisition in such action upon written request by BioMarin Acquisition. During the License Term, Ascent and its Affiliates shall ensure that any personnel of Ascent or its Affiliates will be available to cooperate with BioMarin Acquisition, as reasonably requested by BioMarin Acquisition, at BioMarin Acquisition’s expense. Any recovery received in connection with a suit brought by BioMarin Acquisition pursuant to this Section 10.2(b) shall be retained by BioMarin Acquisition, less reimbursement to Ascent or its Affiliates by BioMarin Acquisition of any reasonable costs incurred by Ascent or its Affiliates as a result of its participation in such action regardless of whether Ascent or its Affiliates participated on its own or was joined in the action. During the License Term, if BioMarin Acquisition (i) fails to institute or defend, as applicable, such suit within a reasonable period of no less than thirty (30) calendar days from the date of receipt of written notice regarding the suit or the basis for such suit, and (ii) within such period of time, BioMarin Acquisition has not provided a commercially reasonable position for failing to take such action, Ascent or its Affiliate may thereafter take such action as it deems necessary to defend and/or enforce its rights, including, without limitation, the right, but not the obligation, to bring, at its own expense, an infringement action or file any other appropriate action or claim

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related to infringement against any third party. BioMarin Acquisition shall, at the request and expense of Ascent or its Affiliate, cooperate and provide reasonable assistance in any action described in this Section and, if required by law, join such action. In such events, the expenses for enforcement will be borne by Ascent or its Affiliate, and any recovery or compensation resulting from such proceeding, including without limitation non-monetary rights, shall belong entirely to Ascent or its Affiliate. Ascent or its Affiliate shall be entitled to any and all damages recovered. Ascent and its Affiliates shall not settle or accept any settlement from any third party without the prior written consent of BioMarin Acquisition, which consent shall not be unreasonably withheld or delayed.

10.3 Ascent’s Right to Assume Obligations. In the event that BioMarin Acquisition elects not to make any filing related to, prosecute, or maintain any registered intellectual property rights in the Licensed Technology, Licensed Development Technology or Improvements, Ascent shall have the right, but not the obligation, to take such action as it deems appropriate, at its own expense, to protect such Licensed Technology, Licensed Development Technology or Improvements.

11. TERM AND TERMINATION

11.1 Term. The term of this Agreement (the “License Term”) will commence on the Effective Date and, unless sooner terminated as provided in this Section 11, shall continue until the earlier occurrence of (a) six (6) years from the Effective Date, and (b) the date on which this Agreement terminates pursuant to Section 11.2 below, at which time this Agreement shall terminate.

11.2 Termination.

(a) In the event that BioMarin Acquisition fails to timely make any License Payment or Contingent Payments Reimbursement Payment and such failure is not cured within twenty (20) Business Days of the due date thereof, then Medicis and Ascent shall have the right, until such failure is cured, in their sole discretion, to terminate this Agreement and exercise the rights set forth in Section 11.4. In the event that Medicis or Ascent terminates this Agreement, such party may require BioMarin Acquisition to pay Ascent immediately a sum equal to (x) the License Payments and the Contingent Reimbursements Payment Reimbursements under this Agreement, less the sum of all amounts paid to Ascent pursuant to Section 4.1 plus (y) all attorney’s fees and other expenses reasonably incurred by Ascent in connection with obtaining the sum described in clause (x) above.

(b) If any Breach by Ascent or Medicis of Section 7.1, 7.2(a) or 10.1(c) results in an Ascent Material Adverse Effect and BioMarin Acquisition gives Medicis written notice of such Breach, specifying in reasonable detail the particulars of the alleged Breach, and such Breach has not been cured within twenty (20) Business Days after Medicis’ receipt of such notice, then BioMarin Acquisition shall have the right, in its sole discretion, to terminate this Agreement.

(c) This Agreement may terminate by the mutual written consent of the parties hereto.

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11.3 Termination Procedures. If BioMarin Acquisition wishes to terminate this Agreement pursuant to Section 11.2, BioMarin Acquisition shall deliver to Ascent a written notice stating that BioMarin Acquisition is terminating this Agreement and setting forth a brief description of the basis on which BioMarin Acquisition is terminating this Agreement. If Ascent wishes to terminate this Agreement pursuant to Section 11.2, Ascent shall deliver to BioMarin Acquisition a written notice stating that Medicis is terminating this Agreement and setting forth a brief description of the basis on which Medicis is terminating this Agreement. Any termination pursuant to Section 11.2 shall be effective upon receipt of notice to such effect by the non-terminating Party in accordance herewith.

11.4 Effects of Termination.

(a) In the event this Agreement is terminated pursuant to Section 11.2 above:

(i) the licenses and sublicenses set forth in Article 2 will terminate and BioMarin and BioMarin Acquisition will no longer have the right to market any Licensed Products;

(ii) BioMarin Acquisition shall destroy or return to Ascent, upon request by Ascent, all packaging, labels, and promotional materials bearing a Licensed Trademark;

(iii) Ascent, in its sole discretion, shall have the right to elect to purchase all or any portion of Licensed Products remaining in inventory or ordered by BioMarin Acquisition prior to the effective date of the termination at the carrying cost for such Licensed Products;

(iv) BioMarin Acquisition shall provide to Ascent all test data including pharmacological, biological, chemical, biochemical, toxicological and clinical test data, analytical and quality control data, stability data, studies and procedures, patent and other legal information or descriptions, customer lists and, upon Ascent’s request, all promotional and marketing materials, in each case, related to the Licensed Products that were conceived, made, developed or otherwise controlled by BioMarin Acquisition or its Affiliates during the term of this Agreement;

(v) BioMarin Acquisition shall cooperate with Ascent to transfer all applicable regulatory matters to Ascent; and

(vi) BioMarin Acquisition shall use commercially reasonable efforts to assign to Ascent, to the extent assignable in whole or in part, as applicable, any agreements of BioMarin Acquisition requested by Ascent to be assigned to the extent related to the promotion, marketing, manufacture, supply and/or distribution of any of the Licensed Products.

(b) Upon the expiration or termination of this Agreement for whatever reason, all rights and obligations of BioMarin and BioMarin Acquisition hereunder shall terminate and BioMarin Acquisition shall promptly discontinue the manufacture, marketing, sale and distribution of Licensed Products and any other use or exploitation of the Licensed Technology, Licensed Trademarks, and Licensed Development Technology; provided, however, that the

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obligation of BioMarin to indemnify the Ascent Indemnitees shall survive termination of this Agreement in accordance herewith.

12. SURVIVAL AND INDEMNIFICATION

12.1 Survival of Representations and Covenants.

(a) All representations and warranties contained in this Agreement are made as of the Effective Date and shall expire at 11:59 p.m. (Pacific Time) on the eighteenth-month anniversary of the Effective Date and shall thereafter be of no further force or effect, except (i) the representations and warranties set forth in Sections 7.1, 7.2(a) and 8.1 shall expire on the expiration of the relevant statute of limitations, and (ii) to the extent required to enforce the parties’ rights and obligations hereunder following the end of such period for any claims for which a Claim Notice (as defined below) has properly been made prior to the expiration of such period. All of the covenants, agreements and obligations of the parties contained in this Agreement shall survive (i) until fully performed or fulfilled, unless non-compliance with such covenants, agreements or obligations is waived in writing by the party or parties entitled to such performance or (ii) if not fully performed or fulfilled, until the expiration of the relevant statute of limitations.

(b) For purposes of this Agreement, a “Claim Notice” relating to a particular representation or warranty or covenant shall be deemed to have been given if any Indemnified Party, acting in good faith, delivers to the Indemnifying Party a written notice stating that such Indemnified Party reasonably believes that there is or has been a possible Breach of such representation or warranty or covenant and containing (i) a brief description of the circumstances supporting such Indemnified Party’s reasonable belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may arise as a direct result of such possible Breach.

12.2 Indemnification by Ascent.

(a) From and after the Effective Date, Ascent shall hold harmless and indemnify each of the BioMarin Indemnitees from and against, and shall compensate and reimburse each of the BioMarin Indemnitees for, any Damages that are suffered or incurred by any of the BioMarin Indemnitees or to which any of the BioMarin Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any Third Party Claim) and that arise from:

(i) any Breach of any of the representations or warranties made by Ascent in this Agreement;

(ii) any Breach of any covenant or obligation of Ascent or Medicis contained in this Agreement;

(iii) any Third Party Claim arising from the conduct or operation of the Pediatrics Business prior to the Effective Date; or

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(iv) any Proceeding relating directly or indirectly to any Breach, Liability or Third Party Claim of the type referred to in clauses (i) through (iii) above (including any Proceeding commenced by any BioMarin Indemnitee for the purpose of enforcing any of its rights under this Section 12.2).

(b) Subject to Section 12.2(d), Ascent shall not be required to make any indemnification payment pursuant to Section 12.2(a)(i) of this Agreement, Section 9.2(a)(i) of the Asset Purchase Agreement, or Section 8.2(a)(i) of the Securities Purchase Agreement, until such time as and to the extent that the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the BioMarin Indemnitees, or to which any one or more of the BioMarin Indemnitees has or have otherwise become subject, exceeds, in the aggregate, $250,000 and then only to the extent of such excess.

(c) Notwithstanding anything in this Agreement to the contrary, but subject to Section 12.2(d), the aggregate liability for any indemnification payments pursuant to Section 12.2(a)(i) of this Agreement, Section 9.2(a)(i) of the Asset Purchase Agreement and Section 8.2(a)(i) of the Securities Purchase Agreement will be limited to, and shall not exceed, in the aggregate, $66.5 million (the “Ascent Cap”), provided, however, that the Ascent Cap shall not apply to any indemnification obligation of Ascent arising out of any Breach of Section 7.1 or 7.2.

(d) The limitations on the indemnification obligations of Ascent set forth in each of Section 12.2(b) and Section 12.2(c) shall not apply to any willful Breach, intentional misrepresentation or fraud by Medicis or Ascent.

(e) To the extent that actions or failures to act or other circumstances result in a Breach of a representation, warranty or covenant or other triggering event giving rise to a right of indemnification to a party under this Agreement, the Asset Purchase Agreement and/or the Securities Purchase Agreement, such party shall be entitled to only one recovery of Damages resulting from such actions, failures to act or other circumstances giving rise to the right of indemnification, regardless of whether the actions, failures to act or other circumstances giving rise to the right of indemnification constitute a Breach of more than one agreement. The parties acknowledge that the purpose of this provision is to prevent duplicative recovery for the same Damages, and not to preclude the recovery of Damages for separate and independent indemnity claims that may arise under the various agreements.

12.3 Indemnification by BioMarin.

(a) From and after the Effective Date, BioMarin shall hold harmless and indemnify the Ascent Indemnitees from and against, and shall compensate and reimburse each of the Ascent Indemnitees for, any Damages that are suffered or incurred by the Ascent Indemnitees or to which the Ascent Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any Third Party Claim) and that arise from:

(i) any Breach of any representation or warranty made by BioMarin or BioMarin Acquisition in this Agreement;

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(ii) any Breach of any covenant or obligation of BioMarin or BioMarin Acquisition in this Agreement; and

(iii) any Third Party Claim arising from the conduct or operation of making, manufacturing, marketing, selling, distributing, importing, exporting and developing of the Licensed Products following the Effective Date, except Damages suffered or incurred or arising from the Breach of Medicis, Ascent or Medicis Manufacturing, as applicable, under this Agreement, the Supply Agreement, or the Transition Services Agreement;

(iv) any Proceeding relating directly or indirectly to any Breach, Liability or Third Party Claim of the type referred to in clauses “(i)” through “(iii)” above (including any Proceeding commenced by any Ascent Indemnitee for the purpose of enforcing its rights under this Section 12.3).

(b) Subject to Section 12.3(d), BioMarin shall not be required to make any indemnification payment pursuant to Section 12.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement or Section 8.3(a)(i) of the Securities Purchase Agreement until such time as and to the extent that the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of its representations or warranties) that have been directly or indirectly suffered or incurred by the Ascent Indemnitees, or to which the Ascent Indemnitees have otherwise become subject, exceeds, in the aggregate, $250,000 and then only to the extent of such excess.

(c) Notwithstanding anything in this Agreement to the contrary, but subject to Section 12.3(d), the aggregate liability for any indemnification payments pursuant to Section 12.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement and Section 8.3(a)(i) of the Securities Purchase Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the “BioMarin Cap”), provided, however, that the BioMarin Cap shall not apply to any indemnification obligation of BioMarin arising out of any Breach of Section 8.1.

(d) The limitation on the indemnification obligations of BioMarin that is set forth in Section 12.3(b) and Section 12.3(c) shall not apply to (i) any failure by BioMarin Acquisition to make any payment pursuant to Section 4.1, or (ii) any willful Breach, intentional misrepresentation or fraud by BioMarin or BioMarin Acquisition.

(e) To the extent that actions or failures to act or other circumstances result in a Breach of a representation, warranty or covenant or other triggering event giving rise to a right of indemnification to a party under this Agreement, the Asset Purchase Agreement and/or the Securities Purchase Agreement, such party shall be entitled to only one recovery of the Damages resulting from such actions, failures to act or other circumstances giving rise to the right of indemnification, regardless of whether the actions, failures to act or other circumstances giving rise to the right of indemnification constitute a breach of more than one agreement. The parties acknowledge that the purpose of this provision is to prevent duplicative recovery for the same

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Damages, and not to preclude the recovery of Damages for separate and independent indemnity claims that may arise under the various agreements.

12.4 Procedures Relating to Indemnification for Third Party Claims Within ten (10) Business Days after a BioMarin Indemnitee or Ascent Indemnitee obtains Knowledge of the commencement of any third-party claim, action, suit or proceeding (a “Third Party Claim”) or the occurrence of any fact which may become the basis of a Third Party Claim in respect of which an Indemnified Party is entitled to indemnification under this Agreement, such Indemnified Party shall notify in writing the Indemnifying Party of such Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and non-privileged documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.

(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate at its expense in the defense thereof and, if it so chooses within thirty (30) days after receipt of notice of such claim to assume the defense thereof at the Indemnifying Party’s expense, with counsel selected by the Indemnifying Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party shall be permitted to participate in the defense thereof and to employ counsel (not reasonably objected to by the Indemnifying Party), at its own expense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party (i) for any period during which the Indemnifying Party has not assumed the defense thereof or is not using commercially reasonable efforts to pursue the defense thereof (other than during the period in which the Indemnified Party failed to give notice of the Third Party Claim as provided above), or (ii) if the Indemnified Party reasonably determines (x) that there may be a conflict between the positions of the Indemnifying Party and the Indemnified Party in defending such claim or action, or (y) that there may be legal defenses available to the Indemnified Party different from or in addition to those available to the Indemnifying Party.

(c) If the Indemnifying Party so elects to assume the defense of any Third Party Claim, all of the Indemnified Parties shall reasonably cooperate with the Indemnifying Party, at the expense of the Indemnifying Party, in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of non-privileged records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which

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consent shall not be unreasonably withheld). If the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim for monetary Damages which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the monetary Damages in connection with such Third Party Claim and which releases the Indemnifying Party and the Indemnified Party completely in connection with such Third Party Claim and does not impose any covenant or commitment on the Indemnified Party.

12.5 Other Claims. In the event any Indemnified Party should have a claim against any Indemnifying Party under Section 12.2 or 12.3 that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice to the Indemnifying Party of such claim within 15 Business Days of obtaining Knowledge of the occurrence of such claim. The failure by any Indemnified Party so to notify the Indemnifying Party within this time period shall not relieve the Indemnifying Party from any liability which it may have to such Indemnified Party under Section 12.2 or 12.3, except to the extent that the Indemnifying Party is materially prejudiced by such failure. If the Indemnifying Party does not notify the Indemnified Party within 15 Business Days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 12.2 or 12.3, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party under Section 12.2 or 12.3 and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined by agreement between the Indemnifying Party and the Indemnified Party or by judgment or decree of a court of competent jurisdiction. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnified Party shall attempt to resolve such claim in accordance with Section 13.6.

12.6 Settlements. No party may settle any claim, action or proceeding related to a liability to a third party without the consent of the other parties, if such settlement would impose any monetary obligation on the other parties or require the other parties to submit to an injunction or impose any covenant or commitment on the other party or otherwise limit the other party’s rights under this Agreement, and any payment made by a party in such a settlement without obtaining such consent shall be at its own cost and expense.

12.7 No Consequential or Punitive Damages. No party hereto (or its Affiliates) shall, under any circumstance, be liable to any other party (or its Affiliates) for any consequential, exemplary, special, incidental or punitive Damages claimed by such other party under the terms of or due to any Breach of this Agreement.

13. MISCELLANEOUS

13.1 Further Assurances. From and after the Effective Time, each party hereto shall execute and deliver such documents and take such other actions as the other party may reasonably request, for the purpose of carrying out or evidencing any of the transactions contemplated hereby.

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13.2 Relationship of the Parties. BioMarin Acquisition, on the one hand, and Ascent, on the other hand, hereby acknowledge that each is an independent entity and is not subject to the control of the other party hereto in any manner except as specifically provided in this Agreement. Nothing contained in this Agreement shall be construed in any way as creating any relationship of partnership or joint venture, between the parties, or to render either party liable for any of the debts or obligations of the other party hereto. Neither party shall act or purport to act, or represent itself, directly or by implication, as the agent, legal Representative, partner or joint venturer of the other party, or in any manner assume or create or purport to assume or create any obligation in the name or on behalf of the other party.

13.3 Rights in Bankruptcy.

(a) All rights and licenses granted under or pursuant to this Agreement by Ascent and Medicis are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code, licenses of rights to “intellectual property” as defined under Section 101 of the U.S. Bankruptcy Code. The parties agree that BioMarin Acquisition shall retain and may fully exercise all of its rights and elections under the U.S. Bankruptcy Code. The parties further agree that, in the event of the commencement of a Bankruptcy Proceeding by or against Ascent and/or Medicis under the U.S. Bankruptcy Code, BioMarin Acquisition shall be entitled to a complete duplicate of (or complete access to, as appropriate) all Licensed Assets and all embodiments of all applicable intellectual property rights, and same, if not already in its possession, shall be promptly delivered to it upon any such commencement of a Bankruptcy Proceeding upon its written request therefor, unless Ascent or Medicis, as applicable (or a trustee on behalf of each such applicable party) elects to continue to perform all of their obligations under this Agreement.

(b) The parties agree and intend that, to the extent permitted by law, the non-monetary provisions of this Agreement and the Securities Purchase Agreement are material elements of such agreements and that the failure to perform such non-monetary provisions would have a materially adverse impact on the value of the Licensed Assets such that any provision of cure, compensation, or adequate assurance of future performance under Section 365(b)(1) of the U.S. Bankruptcy Code must include such non-monetary provisions except as specifically excluded under Section 365(b)(2) of the U.S. Bankruptcy Code. The parties further agree that the prompt payment of all License Payments and Contingent Payment Reimbursement Payments becoming due on or after the commencement of a Bankruptcy Proceeding by or against BioMarin Acquisition shall be a condition precedent to the continued use of Licensed Assets under this Agreement.

13.4 Governing Law; Venue.

(a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of New York (without giving effect to principles of conflicts of laws).

(b) Any legal action or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in

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any state or federal court located in New York, New York in the Borough of Manhattan. Each party to this Agreement:

(i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in New York, New York in the Borough of Manhattan (and each appellate court located in the State of New York) in connection with any such legal proceeding;

(ii) agrees that each state and federal court located in New York, New York in the Borough of Manhattan shall be deemed to be a convenient forum; and

(iii) agrees not to assert (by way of motion, as a defense or otherwise), in any such legal proceeding commenced in any state or federal court located in New York, New York in the Borough of Manhattan, any claim that such party is not subject personally to the jurisdiction of such court, that such legal proceeding has been brought in an inconvenient forum, that the venue of such proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court.

(c) The parties hereto agree that, if any Proceeding is commenced against any Indemnified Party by any Person in or before any court or other tribunal anywhere in the world, then such Indemnified Party may proceed against the Indemnifying Party in or before such court or other tribunal with respect to any indemnification claim or other claim arising directly or indirectly from or relating directly or indirectly to such Proceeding or any of the matters alleged therein or any of the circumstances giving rise thereto.

13.5 Exclusive Remedies; Specific Performance. Except as expressly provided herein or in any Transaction Agreement, the remedies provided in Article 12 shall constitute the sole and exclusive remedy available to each party hereto for recovery against another party for Breaches of the representations, warranties, covenants and agreements in this Agreement. The parties hereto acknowledge that the material covenants, obligations and other provisions to be performed under this Agreement are of a special, unique and extraordinary character, and that irreparable injury will result from any violation or continuing violation of the provisions of this Agreement for which money damages may not be an adequate remedy. Accordingly, the parties agree that in the event of any Breach or threatened Breach by any party hereto of any material covenant, obligation or other provision set forth in this Agreement, the other party or parties shall be entitled (in addition to any other remedy that may be available to it) to seek in accordance with applicable law, (i) a decree or order of specific performance or mandamus to enforce the observance and performance of such covenant, obligation or other provision, and (ii) an injunction restraining such Breach or threatened Breach.

13.6 Dispute Resolution Procedures. In the event any dispute arises between the parties with respect to the interpretation of this Agreement or with respect to the performance of either party, the parties shall first seek to resolve such dispute by negotiations between senior executives who have authority to settle the dispute. When a party believes there is a dispute relating to the Agreement, such party shall give written notice of the dispute to the other party or parties subject to the dispute. The senior executives shall meet promptly after the date of such notice and shall attempt in good faith within 45 days after the date of such notice to resolve the

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dispute prior to initiating litigation with respect to such matter. Notwithstanding the foregoing, if no such resolution is reached within such 45 days, then any party may initiate any proceeding or pursue any remedy it deems appropriate and that is not prohibited hereby.

13.7 Successors and Assigns; Parties In Interest.

(a) This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, the other Indemnified Parties, and the respective successors and assigns (if any) of the foregoing. No Person (including any creditor of Medicis or Ascent or any former or current employee of Ascent) who is not a party to this Agreement shall have any rights hereunder as a third-party beneficiary or otherwise.

(b) Neither this Agreement nor the rights and obligations of any party hereunder shall be assigned without the prior written consent of the other parties, which consent may be given or withheld in such party’s sole discretion. If Medicis or BioMarin or any of their respective successors (i) consolidates with or merges into any other Person and shall not be the continuing or surviving entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Medicis or BioMarin, as the case may be, shall assume the obligations set forth in this Agreement.

13.8 Notices. All notices, demands and other communications under or in connection with this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) if delivered personally, upon delivery, (b) if delivered by registered or certified mail (return receipt requested) from the United States, upon the earlier of actual delivery or three Business Days after being mailed, (c) if sent by overnight delivery by a recognized overnight delivery service for overnight delivery, upon the earlier of actual delivery or one Business Day after being sent, or (d) if given by facsimile, upon confirmation of transmission by facsimile (or, if such confirmation does not occur during normal business hours on a Business Day then on the next Business Day), in each case to the parties at the following addresses or facsimile numbers or to such other address or facsimile numbers as each party may designate for itself by like notice to the other parties:

if to Medicis:

Medicis Pharmaceutical Corporation

8125 N. Hayden Road

Scottsdale, Arizona 85258

Facsimile: (602) 778-6007

Attn: Jonah Shacknai

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With a copy to each of (which copies shall not constitute notice):

Ascent Pediatrics Corporation

8125 N. Hayden Road

Scottsdale, Arizona 85258

Facsimile: (602) 808-3881

Attn: General Counsel

and

Akin Gump Strauss Hauer & Feld LLP

1700 Pacific Ave., Suite 4100

Dallas, Texas 75201

Facsimile: (214) 969-4343

Attention: Michael E. Dillard, P.C.

if to Ascent:

Ascent Pediatrics, Inc.

8125 N. Hayden Road

Scottsdale, Arizona 85258

Facsimile: (602) 778-6007

Attn: Jonah Shacknai:

if to BioMarin:

BioMarin Pharmaceutical Inc.

371 Bel Marin Keys Blvd., Suite 210

Novato, California 94949

Facsimile: (415) 382-7889

Attention: Fredric D. Price

if to BioMarin Acquisition:

BioMarin Pharmaceutical Inc.

371 Bel Marin Keys Blvd., Suite 210

Novato, California 94949

Facsimile: (415) 382-7889

Attention: Fredric D. Price

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With a copy (which copies shall not constitute notice) to:

BioMarin Pediatrics Inc.

371 Bel Marin Keys Blvd., Suite 210

Novato, California 94949

Facsimile: (415) 382-7889

Attention: Fredric D. Price

Paul, Hastings, Janofsky & Walker LLP

515 South Flower Street, 25th Floor

Los Angeles, California 90071

Attention: Siobhan McBreen Burke, Esq.

Telephone:     (213) 683-6000

Facsimile:       (213) 627-0705

13.9 Headings. The headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.

13.10 Counterparts. This Agreement may be executed in several counterparts (including by facsimile), each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.

13.11 Severability. In the event that any provision of this Agreement, or the application of any such provision to any Person or set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Agreement, and the application of such provision to Persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.

13.12 Waiver. No failure on the part of any Person to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Person in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No Person shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Person; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

13.13 Amendments. This Agreement may not be amended, modified, altered or supplemented other than by means of a written instrument duly executed and delivered on behalf of BioMarin Acquisition, BioMarin, Medicis and Ascent.

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13.14 Medicis Performance Guarantee.

(a) Medicis hereby unconditionally, irrevocably and absolutely guarantees to BioMarin and BioMarin Acquisition the due and punctual performance and discharge of all of Ascent’s obligations under this Agreement (collectively, the “Ascent Obligations”). The guarantee under this Section 13.14 is a guarantee of performance of the Ascent Obligations and not merely of collection.

(b) To the fullest extent permitted by applicable law, the obligations of Medicis hereunder shall remain in full force and effect without regard to, and shall not be affected or impaired by, (i) any change in the corporate structure or ownership of Ascent or the bankruptcy, insolvency, reorganization, dissolution, liquidation, or other similar proceeding relating to Ascent or any Affiliate or Subsidiary of either Ascent or Medicis or (ii) any neglect, delay, omission, failure or refusal of Medicis to take or prosecute any action in connection with this Agreement or any other agreement, delivered in connection herewith. In connection with this Section 13.14, Medicis unconditionally waives: (i) any right to receive demands, protests, or other notices of any kind or character whatsoever provided that the same has been delivered to Ascent, (ii) any right to require BioMarin or BioMarin Acquisition to proceed first against Ascent or to exhaust any security held by BioMarin or BioMarin Acquisition or to pursue any other remedy, (iii) any defense based upon an election of remedies by BioMarin or BioMarin Acquisition, (iv) any duty of BioMarin or BioMarin Acquisition to advise Medicis of any information known to BioMarin or BioMarin Acquisition regarding Ascent or its ability to perform under this Agreement, and (v) all suretyship and other defenses of every kind and nature.

(c) The obligations of Medicis under this Section 13.14 shall be automatically reinstated if and to the extent that for any reason any payment or other performance by or on behalf of Ascent in respect of the Ascent Obligations are rescinded or must be otherwise restored, and Medicis agrees that it will indemnify BioMarin and BioMarin Acquisition on demand for all costs and expenses (including reasonable attorneys fees and expenses) incurred by BioMarin or BioMarin Acquisition in connection with such rescission or restoration. If in connection with the foregoing, BioMarin or BioMarin Acquisition is required to refund part or all of any payment of Ascent, such payment by BioMarin or BioMarin Acquisition shall not constitute a release of Medicis from any liability hereunder, and Medicis’ liability hereunder shall be reinstated to the fullest extent allowed under applicable law and shall not be construed to be diminished in any manner.

13.15 BioMarin Performance Guarantee.

(a) BioMarin hereby unconditionally, irrevocably and absolutely guarantees to Medicis and Ascent the due and punctual performance and discharge of all of BioMarin Acquisition’s obligations under this Agreement, including, without limitation, the due and punctual payment of the Licensed Payments and the Contingent Payments Reimbursement Payments and any other amount that BioMarin Acquisition is or may become obligated to pay pursuant to this Agreement (collectively, the “BioMarin Acquisition Obligations”). The guarantee under this Section 13.15 is a guarantee of timely payment and performance of the BioMarin Acquisition Obligations and not merely of collection.

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(b) To the fullest extent permitted by applicable law, the obligations of BioMarin hereunder shall remain in full force and effect without regard to, and shall not be affected or impaired by, (i) any change in the corporate structure or ownership of BioMarin Acquisition or the bankruptcy, insolvency, reorganization, dissolution, liquidation, or other similar proceeding relating to BioMarin Acquisition or any Affiliate or Subsidiary of either BioMarin Acquisition or BioMarin or (ii) any neglect, delay, omission, failure or refusal of BioMarin to take or prosecute any action in connection with this Agreement or any other agreement, delivered in connection herewith. In connection with this Section 13.15, BioMarin unconditionally waives: (i) any right to receive demands, protests, or other notices of any kind or character whatsoever, provided that the same has been delivered to BioMarin Acquisition, (ii) any right to require Medicis or Ascent to proceed first against BioMarin Acquisition or to exhaust any security held by Medicis or Ascent or to pursue any other remedy, (iii) any defense based upon an election of remedies by Medicis or Ascent, (iv) any duty of Medicis or Ascent to advise BioMarin of any information known to Medicis or Ascent regarding BioMarin Acquisition or its ability to perform under this Agreement, and (v) all suretyship and other defenses of every kind and nature.

(c) The obligations of BioMarin under this Section 13.15 shall be automatically reinstated if and to the extent that for any reason any payment or other performance by or on behalf of BioMarin Acquisition in respect of the BioMarin Acquisition Obligations are rescinded or must be otherwise restored, and BioMarin agrees that it will indemnify Medicis and Ascent on demand for all costs and expenses (including reasonable attorneys fees and expenses) incurred by Medicis or Ascent in connection with such rescission or restoration. If in connection with the foregoing, Medicis or Ascent is required to refund part or all of any payment of BioMarin Acquisition, such payment by Medicis or Ascent shall not constitute a release of BioMarin from any liability hereunder, and BioMarin’s liability hereunder shall be reinstated to the fullest extent allowed under applicable law and shall not be construed to be diminished in any manner.

13.16 Entire Agreement. The Transaction Agreements set forth the entire understanding of the parties relating to the subject matter thereof and supersede all prior agreements and understandings among or between any of the parties relating to the subject matter thereof.

13.17 Consistency. Each of the parties hereto agrees to report the transaction contemplated herein for all state and federal Tax purposes as a license and to treat the payments made by BioMarin Acquisition pursuant to Section 4 as a payment for the use of the assets subject to the License and the license granted under Section 2.1(b).

13.18 NO PROJECTION OR FINANCIAL FORECAST. ASCENT IS NOT MAKING ANY REPRESENTATION OR WARRANTY TO BIOMARIN AND BIOMARIN ACQUISITION WITH RESPECT TO (I) ANY FINANCIAL PROJECTION OR FORECAST RELATING TO THE PEDIATRICS BUSINESS, THE ACQUIRED ASSETS OR LIABILITIES OF MEDICIS OR ASCENT OR RELATED TO THE PHARMACEUTICAL MARKET AS A WHOLE OR THE MARKET FOR ORAL LIQUID PREDNISOLONE SOLUTION PRODUCTS OR ORAL DISSOLVING TABLET PREDNISOLONE PRODUCTS SPECIFICALLY, INCLUDING BUT NOT LIMITED TO ANY PROJECTIONS INCLUDING

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FUTURE SALES OF SUCH PRODUCTS, OR THE INTRODUCTION OF ANY COMPETITIVE PRODUCTS (WHETHER GENERIC OR NAME BRAND).

13.19 Release. In the event that Ascent becomes a wholly-owned Subsidiary of Licensee or any of its Affiliates, without any action of any party, on the date Ascent becomes such a Subsidiary, Medicis shall no longer be deemed a party to this Agreement and all rights and obligations of Medicis hereunder shall be deemed extinguished; provided, however, that the obligation of Medicis to guarantee indemnification of the BioMarin Indemnitees shall survive termination of this Agreement in accordance herewith.

13.20 Fees and Expenses; Investment Banking Fees.

(a) Each party to this Agreement shall bear and pay all fees, costs and expenses (including all legal fees and expenses, that have been incurred or that are in the future incurred by, on behalf of or for the benefit of such party in connection with: (i) the negotiation, preparation and review of any letter of intent or similar document relating to any of the transactions contemplated hereby; (ii) the investigation and review conducted by such party and its Representatives with respect to the transactions contemplated hereby; (iii) the negotiation, preparation and review of this Agreement or any of the documents delivered in connection herewith; (iv) the preparation and submission of any filing or notice required to be made or given in connection with any of the transactions contemplated hereby, and the obtaining of any consent required to be obtained in connection with any of the transactions contemplated hereby; and (v) the consummation and performance of the transactions contemplated hereby.

(b) Notwithstanding anything to the contrary contained elsewhere in this Agreement, each party to this Agreement shall pay its own investment banking, broker or finder fees, if any, incurred in connection with the transactions contemplated hereby.

13.21 Attorneys’ Fees. If any legal action or other legal proceeding relating to the Transaction Agreements or the enforcement of any provision of any of the Transaction Agreements is brought by one party against any other party to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized representatives as of the day and year first above written.

ASCENT PEDIATRICS, INC.		BIOMARIN PEDIATRICS INC.
By:	/s/ Mark A. Prygoki, Sr.	By:	/s/ Christopher Starr
Its:	Secretary and Treasurer	Its:	President
MEDICIS PHARMACEUTICAL CORPORATION		BIOMARIN PHARMACEUTICAL INC.
By:	/s/ Mark A. Prygoki, Sr.	By:	/s/ Fredric D. Price
Its:	Executive Vice President, Secretary and Treasurer	Its:	Chairman and Chief Executive Officer

[SIGNATURE PAGE TO LICENSE AGREEMENT]

The following exhibits and schedules are omitted in reliance upon Item 601(b)(2) of Regulation S-K. The Registrant will supplementally furnish a copy of such omitted schedules and exhibits to the Securities and Exchange Commission upon its request.

Schedule 1.1(t) - Development Licensed Patents

Schedule 1.1(oo) - Trademarks

Schedule 1.1(jjj) - Taste Masking Related Licensed Patents

Schedule 2.5 - ANDA

Schedule 3.7(a) - Trademark Guidelines

Schedule 7.2 - Trademark Actions

Schedule 7.4(d) - Third Party Licenses Affecting the Rights and Licenses Granted to BioMarin Acquisition

Schedule 7.4(i) – Trademarks in Good Standing

Exhibit A - - Form of Escrow Agreement

Exhibit B - Medicis and Ascent Knowledge

Exhibit C - BioMarin and BioMarin Acquisition Knowledge

Exhibit D - Litigation Matters

Exhibit E - Form of Security Agreement

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