**UNITEDSTATESSECURITIES AND EXCHANGE COMMISSION**

**WASHINGTON,D.C. 20549**

 

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**FORM 10-K/A**

**(Amendment No. 1)**

 

**(MARK ONE)**
| **ý**                                                                                                                                                                                                                 | ** ** | **Annual Report Pursuant to Section 13  or 15(d) of the Securities Exchange Act of 1934**     |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|---------------------------------------------------------------------------------------------------------|
|                                                                                                                                                                                                                       |       |                                                                                                    |
| **For the  Fiscal Year Ended December 31, 2004**                                                                                                                                                                      |
|                                                                                                                                                                                                                       |       |                                                                                                    |
| **Or**                                                                                                                                                                                                                     |
|                                                                                                                                                                                                                       |       |                                                                                                    |
| **o**                                                                                                                                                                                                                      | ** ** | **Transition Report Pursuant to Section 13  or 15(d) of the Securities Exchange Act of 1934** |
|                                                                                                                                                                                                                       |       |                                                                                                    |
| **For the  Transition Period  From               To               ** |

 

**COMMISSIONFILE NUMBER 33-90516**

 

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**NEOPHARM, INC.**

(Exact Name of Registrant asSpecified in its Charter)

 
| **DELAWARE**                                                     | ** ** | **51-0327886**                           |
|------------------------------------------------------------------|------------|------------------------------------------|
| (State or other  jurisdiction of  incorporation or organization) |       | (I.R.S. Employer  Identification Number) |

 

**150 FIELDDRIVESUITE 195LAKE FOREST, ILLINOIS  60045**

(Address of PrincipalExecutive Offices)  (Zip Code)

 

**(847) 295-8678**

(Registrant’s TelephoneNumber, Including Area Code)

 

SECURITIES REGISTEREDPURSUANT TO SECTION 12(b) OF THE ACT:**NONE**

 

SECURITIES REGISTEREDPURSUANT TO SECTION 12(g) OF THE ACT:

 

**COMMON STOCK, $.0002145 PAR VALUE**

(Title of class)

 

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Indicate by check markwhether the registrant (1) has filed all reports required to be filed by Section 13or 15(d) of the Securities Exchange Act of 1934 during the preceding12 months (or for such shorter period that the registrant was required tofile such reports), and (2) has been subject to such filing requirementsfor the past 90 days. Yes ý  No o

 

Indicate by check mark ifdisclosure of delinquent filers pursuant to Item 405 of Regulation S-K isnot contained herein, and will not be contained, to the best of registrant’sknowledge, in definitive proxy or information statements incorporated byreference in Part III of this Form 10-K or any amendment to this Form 10-K. o

 

Indicate by check markwhether Registrant is an accelerated filer (as defined in Exchange Act Rule 12b-2)Yes ý  No o

 

The aggregate market valueof the Registrant’s common stock held by non-affiliates (affiliates being, forthese purposes only, directors, executive officers and holders of 5% of theregistrant’s stock) of the registrant, par value $.0002145 per share, (based onthe closing price of such shares on the NASDAQ on June 30, 2004) was$110,569,851. As of March 1, 2005 there were 23,525,163 shares of CommonStock outstanding.

 

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**DocumentsIncorporated by Reference**

 

None.

 

 

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**EXPLANATORY NOTE**

 

NeoPharm, Inc. (the “Company”)is filing this Amendment No. 1 on Form 10-K/A (the “Amendment”) tothe Company’s Annual Report on Form 10-K for the year ended December 31,2004 (which was filed with the Securities and Exchange Commission on March 16,2005) pursuant to an exemptive order issued by the Securities and ExchangeCommission (SEC Release No. 34-50754). In accordance with the exemptiveorder, the Company is permitted to include management’s annual report oninternal control over financial reporting and the related attestation report ofthe Company’s independent registered public accounting firm in an amendment toits annual report on Form 10-K not later than forty-five days after theprescribed period for filing such Annual Report on Form 10-K. Incompliance with the exemptive order, the Company is filing this Amendment toinclude:

 

•                  management’sannual report on internal control over financial reporting, and

 

•                  aReport of Independent Registered Public Accounting Firm relating to the Company’sassessment of internal control over financial reporting and the effectivenessof internal control over financial reporting.

 

As a result of thisAmendment, (1) the certifications pursuant to Section 302 and Section 906of the Sarbanes-Oxley Act of 2002, filed and furnished, respectively, asexhibits to the original filing, have been re-executed, re-filed, andre-furnished as of the date of this Amendment; and (2) a Consent ofIndependent Registered Public Accounting Firm dated April 28, 2005 to theincorporation by reference in registration statements of the Company of theirreport related to our assessment of the effectiveness of internal control overfinancial reporting as of December 31, 2004 and the effectiveness of ourinternal control over financial reporting as of December 31, 2004 is beingfiled.

 

Except for the amendmentsdescribed above, this Amendment does not modify or update the Company’spreviously reported financial statements and other financial disclosures in, orexhibits to, the original filing. Unaffected items have not been repeated inthis Amendment.

 

2

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**ITEM 9A. CONTROLS AND PROCEDURES**

 

**DISCLOSURE CONTROLS AND PROCEDURES**

 

As required by Rules 13a-15and 15d-15 of the Securities Exchange Act of 1934, the Company has evaluated,with the participation of management, including the Chief Executive Officer andthe Chief Financial Officer, as of the end of the period covered by thisreport, the effectiveness of the design and operation of its disclosurecontrols and procedures. Based on such evaluation, the Chief Executive Officerand Chief Financial Officer have concluded that such disclosure controls andprocedures are effective in ensuring that material information relating to theCompany, including its consolidated subsidiary, is made known to the certifyingofficers by others within the Company and its consolidated subsidiary,particularly during the period in which this report is being prepared. Fromtime to time, the Company reviews the disclosure controls and procedures, andmay from time to time make changes aimed at enhancing their effectiveness andto ensure that the Company’s systems evolve with its business.

 

**INTERNAL CONTROL OVER FINANCIAL REPORTING**

 

**Management’s Report on InternalControl over Financial Reporting**

 

The management of NeoPharm, Inc.(the Company) is responsible for establishing and maintaining adequate internalcontrol over financial reporting.

 

The Company’s internalcontrol over financial reporting is a process designed to provide reasonableassurance to the Company’s management and Board of Directors regarding thereliability and preparation of published financial statements in accordancewith U.S. generally accepted accounting principles.  All internal control systems, no matter howwell designed, have inherent limitations. Therefore, even those systemsdetermined to be effective can provide only reasonable assurance with respectto financial statement preparation and presentation and may not prevent or detectmisstatements. Also, projections of any evaluation of effectiveness to futureperiods are subject to the risk that controls may become inadequate because ofchanges in conditions, or that the degree of compliance with the policies orprocedures may deteriorate.

 

The Company’s managementassessed the effectiveness of the Company’s internal control over financialreporting as of December 31, 2004. In making this assessment, the Companyused the criteria set forth in *InternalControl—Integrated Framework* issued by the Committee of SponsoringOrganizations of the Treadway Commission (COSO). Based on management’sassessment, the Company believes that, as of December 31, 2004, theCompany’s internal control over financial reporting is effective based on the criteriaestablished in *Internal Control-IntegratedFramework.*

 

Management’s assessment ofthe effectiveness of the Company’s internal control over financial reporting asof December 31, 2004, has been audited by the Company’s independentregistered public accounting firm whose report follows this report.

 

**Changes in Internal Control overFinancial Reporting**

 

There was no change in theCompany’s internal control over financial reporting that occurred during thequarter ended December 31, 2004 that has materially affected, or is likelyto materially affect, the Company’s internal control over financial reporting.

 

3

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**Report of Independent RegisteredPublic Accounting Firm**

 

The Board of Directors and Stockholders

NeoPharm, Inc.:

 

We have audited management’s assessment, included in the accompanyingManagement’s Report on Internal Control over Financial Reporting, that NeoPharm, Inc.maintained effective internal control over financial reporting as of December 31,2004, based on criteria established in Internal Control—Integrated Frameworkissued by the Committee of Sponsoring Organizations of the Treadway Commission(COSO).**NeoPharm, Inc.’smanagement is responsible for maintaining effective internal control over financialreporting and for its assessment of the effectiveness of internal control overfinancial reporting. Our responsibility is to express an opinion on management’sassessment and an opinion on the effectiveness of the Company’s internalcontrol over financial reporting based on our audit.

 

We conducted our audit in accordance with the standards of the PublicCompany Accounting Oversight Board (United States). Those standards requirethat we plan and perform the audit to obtain reasonable assurance about whethereffective internal control over financial reporting was maintained in allmaterial respects. Our audit included obtaining an understanding of internalcontrol over financial reporting, evaluating management’s assessment, testingand evaluating the design and operating effectiveness of internal control, andperforming such other procedures as we considered necessary in thecircumstances. We believe that our audit provides a reasonable basis for ouropinion.

 

A company’s internal control over financial reporting is a processdesigned to provide reasonable assurance regarding the reliability of financialreporting and the preparation of financial statements for external purposes inaccordance with generally accepted accounting principles.  A company’s internal control over financialreporting includes those policies and procedures that (1) pertain to themaintenance of records that, in reasonable detail, accurately and fairlyreflect the transactions and dispositions of the assets of the company; (2) providereasonable assurance that transactions are recorded as necessary to permitpreparation of financial statements in accordance with generally acceptedaccounting principles, and that receipts and expenditures of the company arebeing made only in accordance with authorizations of management and directorsof the company; and (3) provide reasonable assurance regarding preventionor timely detection of unauthorized acquisition, use, or disposition of thecompany’s assets that could have a material effect on the financial statements.

 

Because of its inherent limitations, internal control over financialreporting may not prevent or detect misstatements.  Also, projections of any evaluation ofeffectiveness to future periods are subject to the risk that controls maybecome inadequate because of changes in conditions, or that the degree ofcompliance with the policies or procedures may deteriorate.

 

In our opinion, management’s assessment that NeoPharm, Inc.maintained effective internal control over financial reporting as of December 31,2004, is fairly stated, in all material respects, based on criteria establishedin Internal Control—Integrated Framework issued by the Committee of SponsoringOrganizations of the Treadway Commission (COSO).  Also, in our opinion, NeoPharm, Inc.maintained, in all material respects, effective internal control over financialreporting as of December 31, 2004, based on criteria established inInternal Control—Integrated Framework issued by the Committee of SponsoringOrganizations of the Treadway Commission (COSO).

 

We also have audited, in accordance with the standards of the PublicCompany Accounting Oversight Board (United States), the consolidated balancesheets of NeoPharm, Inc. and subsidiary as of December 31, 2004 and2003, and the related consolidated**statementsof operations, stockholders’ equity, and cash flows for each of the years inthe three-year period ended December 31, 2004, and our report dated March 14,2005 expressed an unqualified opinion on those consolidated financialstatements.

 
| /s/ KPMG LLP |   |
|--------------|--------|

 

Chicago, Illinois

April 28, 2005

 

4

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**Item 15(a)(3) Exhibit List**

 
| **Exhibit  Number** | ** ** | **Description**                                                                                                                                                                                                                                                                                               |
|---------------------|------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| ** **          | ** ** | ** **                                                                                                                                                                                                                                                                                                    |
| 3.1                 |       | Amended and Restated Certificate of  Incorporation.(1)                                                                                                                                                                                                                                                        |
|                |       |                                                                                                                                                                                                                                                                                                          |
| 3.1.1               |       | Amendment to the Amended and Restated Certificate  of Incorporation incorporated by reference from Exhibit 3.01 contained  in the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30,  2002. (File No. 001-12493).                                                |
|                |       |                                                                                                                                                                                                                                                                                                          |
| 3.2                 |       | Amended and Restated Bylaws of the Company  incorporated by reference from Exhibit 3.2 contained in the Company’s  Current Report on Form 8-K filed September 7, 2004 (File No. 001-12493).(1)                                                                                       |
|                |       |                                                                                                                                                                                                                                                                                                          |
| 4.1                 |       | Specimen Common Stock Certificate.(2)                                                                                                                                                                                                                                                                         |
|                |       |                                                                                                                                                                                                                                                                                                          |
| 4.1.1               |       | Preferred Stock Rights Agreement between NeoPharm, Inc.  and Computershare Investor Services L.L.C. dated as of June 30, 2003,  incorporated by reference from Exhibit 4.1 contained in the Company’s  Current Report on Form 8-K filed July 7, 2003 (File No. 001-12493). |
|                |       |                                                                                                                                                                                                                                                                                                          |
| 4.1.2               |       | First Amendment to Rights Agreement between  NeoPharm, Inc. and Computershare Investor Services L.L.C. dated as of September 10,  2004, incorporated by reference from the Company’s Current Report on Form 8-K  filed September 24, 2004 (File No. 001-12493).                 |
|                |       |                                                                                                                                                                                                                                                                                                          |
| 4.1.3               |       | Second Amendment to Rights Agreement between  NeoPharm, Inc. and Computershare Investor Services, L.L.C. dated as of November 11,  2004, incorporated by reference from the Company’s Current Report on Form 8-K  filed November 17, 2004 (File No. 001-12493).                 |
|                |       |                                                                                                                                                                                                                                                                                                          |
| *10.1               |       | 1995 Stock Option Plan, with forms of Incentive  and Nonstatutory Stock Option Agreements.(2)                                                                                                                                                                                                                 |
|                |       |                                                                                                                                                                                                                                                                                                          |
| *10.2               |       | 1995 Director Option Plan, with form of Director  Stock Option Agreement.(2)                                                                                                                                                                                                                                  |
|                |       |                                                                                                                                                                                                                                                                                                          |
| 10.3                |       | Form of Director and Officer Indemnification  Agreement.(2)                                                                                                                                                                                                                                              |
|                |       |                                                                                                                                                                                                                                                                                                          |
| 10.4                |       | Cooperative Research and Development Agreement  between the Company and the National Cancer Institute dated September 13,  1993.(2)                                                                                                                                                                      |
|                |       |                                                                                                                                                                                                                                                                                                          |
| 10.5                |       | License Agreement between the Company and  Georgetown University dated July 1990.(2)                                                                                                                                                                                                                     |
|                |       |                                                                                                                                                                                                                                                                                                          |
| 10.6                |       | License Agreement between the Company and  Georgetown University dated April 18, 1994.(2)                                                                                                                                                                                                                |
|                |       |                                                                                                                                                                                                                                                                                                          |
| 10.7                |       | Loan Repayment Note, dated June 18, 1990, by  and between the Company and the John N. Kapoor Trust.(2)                                                                                                                                                                                                   |

 

5

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| 10.8   |   | Consulting Agreement, dated July 1, 1994, by  and between the Company and EJ Financial Services, Inc.(2)                                                                                                                                                                                                                         |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                                       |
|   |   | Harris Bank and Trust Company Loan Agreement dated  March 16, 1995, as amended October 5, 1995.(2)                                                                                                                                                                                                                               |
|   |   |                                                                                                                                                                                                                                                                                                                                       |
| *10.10 |   | Option Agreement, dated as of August 13,  1996, between the Company and John N. Kapoor and Anatoly Dritschilo.(3)                                                                                                                                                                                                                     |
|   |   |                                                                                                                                                                                                                                                                                                                                       |
| 10.11  |   | Cooperative Research and Development Agreement  between the Company and the Food and Drug Administration dated August 27,  1997.(4)                                                                                                                                                                                                   |
|   |   |                                                                                                                                                                                                                                                                                                                                       |
| 10.12  |   | License Agreement between the Company and the  National Institute of Health dated September 23, 1997.(4)                                                                                                                                                                                                                              |
|   |   |                                                                                                                                                                                                                                                                                                                                       |
| *10.13 |   | Employment Agreement between James M. Hussey and  the Company dated March 16, 1998.(4)                                                                                                                                                                                                                                                |
|   |   |                                                                                                                                                                                                                                                                                                                                       |
| *10.14 |   | 1998 Equity Incentive Plan.(5)                                                                                                                                                                                                                                                                                                             |
|   |   |                                                                                                                                                                                                                                                                                                                                       |
| 10.15  |   | Collaboration Agreement by and between the Company  and BioChem Therapeutics dated May 12, 1997.(4)                                                                                                                                                                                                                                   |
|   |   |                                                                                                                                                                                                                                                                                                                                       |
| 10.16  |   | License Agreement by and between the Company and  Pharmacia and Upjohn Company dated February 19, 1999, incorporated by  reference from Exhibit 10.1 of the Company’s report on Form 8-K  (File No. 33-09516).                                                                                                    |
|   |   |                                                                                                                                                                                                                                                                                                                                       |
| 10.17  |   | Stock Purchase Agreement by and between the  Company and Pharmacia and Upjohn dated February 19, 1999, incorporated  by reference from Exhibit 10.2 of the Company’s Report on Form 8-K  (File No. 33-09516).                                                                                                     |
|   |   |                                                                                                                                                                                                                                                                                                                                       |
| 10.18  |   | Amendment No. 1 dated January 22, 1999  to the License Agreement between the Company and Georgetown University dated  January, 1990.(4)                                                                                                                                                                                          |
|   |   |                                                                                                                                                                                                                                                                                                                                       |
| 10.19  |   | Amendment No. 1 dated January 22, 1999  to the License Agreement between the Company and Georgetown University dated April 18,  1994.(4)                                                                                                                                                                                    |
|   |   |                                                                                                                                                                                                                                                                                                                                       |
| 10.20  |   | Line of Credit Agreement, dated as of September 30,  1998, by and between the Company and the John N. Kapoor Trust dated September 20,  1989 incorporated by reference from Exhibit 10.15 of the Company’s Quarterly  Report on Form 10-Q for the quarter ended September 30, 1998 (File No. 33-09516). |
|   |   |                                                                                                                                                                                                                                                                                                                                       |
| 10.21  |   | Consulting Agreement dated as of June 19,2000  by and between the Company and Unicorn Pharma Consulting, Inc.,  incorporated by reference from Exhibit 10.01 of the Company’s Quarterly  Report on Form 10-Q for the quarter ended June 30, 2000.                                                            |
|   |   |                                                                                                                                                                                                                                                                                                                                       |
| 10.22  |   | Consulting Agreement dated as of November 12,  2001 by and between the Company and Unicorn Pharma Consulting, Inc.,  incorporated by reference from Exhibit 10.1 to the Company’s Annual  Report on Form 10-K for the fiscal year ended December 31, 2001.                                                   |
|   |   |                                                                                                                                                                                                                                                                                                                                       |
| 10.23  |   | Promissory Note dated as of December 20, 2001  by and between the Company and Akorn, Inc., incorporated by reference  from Exhibit 10.2 to the Company’s Annual Report on Form 10-K for  the fiscal year ended December 31, 2001.                                                                            |
|   |   |                                                                                                                                                                                                                                                                                                                                       |
| 10.24  |   | Processing Agreement dated as of December 20,  2001 by and between the Company and Akorn, Inc., incorporated by  reference from Exhibit 10.3 to the Company’s Annual Report on Form 10-K  for the fiscal year ended December 31,                                                                             |

 

6

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|   |   | 2001.                                                                                                                                                                                                                                                                                                                                                              |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| 10.25  |   | Subordination and Intercreditor Agreement dated as  of December 20, 2001 by and between the Company and John N. Kapoor, as  Trustee under the John N. Kapoor Trust, dated September 20, 1989,  incorporated by reference from Exhibit 10.4 to the Company’s Annual  Report on Form 10-K for the fiscal year ended December 31, 2001. |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| 10.26  |   | Subordination, Standby and Intercreditor Agreement  dated as of December 20, 2001 by and between the Company and the  Northern Trust Company, incorporated by reference from Exhibit 10.5 to  the Company’s Annual Report on Form 10-K for the fiscal year ended December 31,  2001.                                                      |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| *10.27 |   | Amendment to the 1998 Equity Incentive Plan,  incorporated by reference from Appendix A to the Company’s Definitive Proxy  Statement on Schedule 14A for the Annual Meeting of Stockholders held June 6,  2002.                                                                                                                                     |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| 10.28  |   | First Amended and Restated Synthetic Cardiolipin  Supply Agreement dated as of November 1999, by and between Avanti Polar  Lipids, Inc. and NeoPharm, Inc., incorporated by reference from Exhibit 10.1  to the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30,  2003 (File No. 001-12493).    |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| 10.29  |   | Conditional Option Agreement between Avanti Polar  Lipids and NeoPharm, Inc. dated as of January 26, 1999,  incorporated by reference from Exhibit 10.2 to the Company’s Quarterly  Report on Form 10-Q for the quarter ended September 30, 2003 (File No. 001-12493).                                                          |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| 10.30  |   | Form of Amendment to Processing Agreement  dated as of October 7, 2003 by and between NeoPharm, Inc. and Akorn, Inc.                                                                                                                                                                                                                           |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| 10.31  |   | Form of Amended and Restated Promissory Note  dated as of October 7, 2003 by and between the Company and Akorn, Inc.                                                                                                                                                                                                                                |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| 10.32  |   | Subordination and Intercreditor Agreement dated as  of October 7, 2003 by and between the Company and LaSalle Bank National  Association.                                                                                                                                                                                                                     |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| *10.33 |   | Separation Agreement and Full Release of Claims  between the Company and James M. Hussey, dated as of June 17, 2004,  incorporated by reference from Exhibit 10.01 contained in the Company’s  Quarterly Report on Form 10-Q for the quarter ended June 30, 2004.                                                                         |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| *10.34 |   | Employment Agreement by and between NeoPharm, Inc.  and Gregory P. Young dated as of June 17, 2004, incorporated by  reference from Exhibit 10.02 contained in the Company’s Quarterly Report  on Form 10-Q for the quarter ended June 30, 2004.                                                                                     |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| *10.35 |   | Form of Director and Executive Officer  Indemnification Agreement of NeoPharm, Inc., as adopted on September 20,  2004, incorporated by reference from Exhibit 10.01 to the Company’s  Current Report on Form 8-K filed September 30, 2004 (File No. 001-12493).                                                           |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| 10.36  |   | Settlement Agreement among NeoPharm, Inc.,  John N. Kapoor, Ph.D., Erick E. Hanson, Gregory P. Young, and Dr. Kaveh  T. Safavi dated as of November 11, 2004, incorporated by reference from Exhibit 10.01  to the Company’s Current Report on Form 8-K filed November 17, 2004  (File No. 001-12493).                     |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| *10.37 |   | Separation Agreement by and between NeoPharm, Inc.  and Sander A. Flaum dated as of November 11, 2004, incorporated by  reference from Exhibit 10.02 the                                                                                                                                                                                            |

 

7

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|   |   | Company’s Current Report on Form 8-K filed September 17,  2004 (File No. 001-12493).                                                                                                                                                                                                               |
|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                   |
| *10.38 |   | Separation Agreement by and between NeoPharm, Inc.  and Matthew P. Rogan dated as of November 11, 2004, incorporated by  reference from Exhibit 10.03 to the Company’s Report on Form 8-K  filed on November 17, 2004 (File No. 001-12493).                                         |
|   |   |                                                                                                                                                                                                                                                                                                                   |
| 10.39  |   | Sublicense and License Agreement between Nippon  Kayaku Co., Ltd. and NeoPharm, Inc. dated as of December 28, 2004,  incorporate by reference from Exhibit 10.01 to the Company’s Current  Report on Form 8-K filed January 4, 2005 (File No. 001-112493).                          |
|   |   |                                                                                                                                                                                                                                                                                                                   |
| *10.40 |   | Terms of Employment by and between NeoPharm, Inc.  and Ronald G. Eidell dated March 10, 2005, incorporated by reference  from Exhibit 10.01 to the Company’s Current Report on Form 8-K  filed on March 14, 2005 (File No. 001-12493).                                              |
|   |   |                                                                                                                                                                                                                                                                                                                   |
| *10.41 |   | Separation Agreement and Full Release of Claims by  and between NeoPharm, Inc. and Gregory P. Young dated as of March 11,  2005, incorporated by reference from Exhibit 10.02 to the Company’s  Current Report on Form 8-K filed on March 14, 2005 (File No. 001-12493).            |
|   |   |                                                                                                                                                                                                                                                                                                                   |
| *10.42 |   | Amendment No. 1 to Separation Agreement and  Full Release of Claims by and between NeoPharm, Inc and James M. Hussey dated  March 10, 2005, incorporated by reference from Exhibit 10.03 to the  Company’s Current Report on Form 8-K filed on March 14, 2005 (File No. 001-12493). |
|   |   |                                                                                                                                                                                                                                                                                                                   |
| 23.1   |   | Consent of Independent Registered Public  Accounting Firm.                                                                                                                                                                                                                                                             |
|   |   |                                                                                                                                                                                                                                                                                                                   |
| **23.2 |   | Consent of Independent Registered Public  Accounting Firm.                                                                                                                                                                                                                                                             |
|   |   |                                                                                                                                                                                                                                                                                                                   |
| **31.1 |   | Certification of Chief Executive Officer.                                                                                                                                                                                                                                                                              |
|   |   |                                                                                                                                                                                                                                                                                                                   |
| **31.2 |   | Certification of Chief Financial Officer.                                                                                                                                                                                                                                                                              |
|   |   |                                                                                                                                                                                                                                                                                                                   |
| **32.1 |   | Certification pursuant to Section 906 of the  Sarbanes-Oxley Act.                                                                                                                                                                                                                                                 |
|   |   |                                                                                                                                                                                                                                                                                                                   |
| **32.2 |   | Certification pursuant to Section 906 of the  Sarbanes-Oxley Act.                                                                                                                                                                                                                                                 |

 

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*                 Denotesmanagement contract or compensatory plan or arrangement.

 

**          Filed herewith

 

(1)             Incorporated by reference to the exhibit ofthe same number contained in the Company’s registration statement on Form S-3filed under the Securities Act of 1933 (the “33 Act”) on October 1, 2003.(File No. 333-44396).

 

(2)             Incorporated by reference to the exhibit ofthe same number contained in the Company’s registration statement on Form S-1filed under the “33 Act. (File No. 33-90516).

 

(3)             Incorporated by reference to Exhibit 10.11of the Company’s Annual Report on Form 10-K for the year ended December 31,1996. (File No. 001-12493)

 

(4)             Incorporated by reference to the exhibit ofthe same number contained in the Company’s Annual Report on Form 10-K forthe year ended December 31,1998. (File No. 001-12493)

 

(5)             Incorporated by reference to the Exhibit 4.1to the Company’s registration statement on Form S-8 filed under the “33Act. (File No. 333-66365).

 

8

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All schedules and exhibits,other than those listed above are omitted as the information is not required oris furnished elsewhere in the financial statements or the notes thereto.

 

**SIGNATURES**

 

PURSUANTTO THE REQUIREMENTS OF SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGEACT OF 1934, THE REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON ITSBEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED

 
|   | NeoPharm, Inc.                     |
|--------|-----------------------------------------|
|   |                                    |
|   |                                    |
|   | By:                                     | /s/ RONALD G. EIDELL |   |
|   |                                    | Ronald G. Eidell |
|   | *President and Chief Executive Officer* |

 

PURSUANTTO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THIS ANNUAL REPORTHAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATESINDICATED.

 
| **Signature**                | ** ** | **Title**           | ** **                               | **Date** |
|------------------------------|------------|---------------------|------------------------------------------|----------|
|                         |       |                |                                     |     |
|  /s/ ERICK E. HANSON    |       |                | Director, Chairman of the Board          |     | April 29, 2005 |
|   Erick E. Hanson       |       |                |                                     |     |   |
|                         |       |                |                                     |     |   |
|  /s/ RONALD G. EIDELL   |       |                | Director, President, and Chief Executive |     | April 29, 2005 |
|   Ronald G. Eidell      |       |                | Officer (Principal Executive Officer)    |     |   |
|                         |       |                |                                     |     |   |
|  /s/ FRANK C. BECKER    |       |                | Director                                 |     | April 29, 2005 |
|   Frank C. Becker       |       |                |                                     |     |   |
|                         |       |                |                                     |     |   |
|  /s/ BERNARD A. FOX     |       |                | Director                                 |     | April 29, 2005 |
|   Bernard A. Fox        |       |                |                                     |     |   |
|                         |       |                |                                     |     |   |
|  /s/ PAUL E. FREIMAN    |       |                | Director                                 |     | April 29, 2005 |
|   Paul E. Freiman       |       |                |                                     |     |   |
|                         |       |                |                                     |     |   |
|  /s/ JOHN N. KAPOOR     |       |                | Director                                 |     | April 29, 2005 |
|   John N. Kapoor        |       |                |                                     |     |   |
|                         |       |                |                                     |     |   |
|  /s/ KAVEH T. SAFAVI    |       |                | Director                                 |     | April 29, 2005 |
|   Kaveh T. Safavi       |       |                |                                     |     |   |
|                         |       |                |                                     |     |   |
|  /s/ LAWRENCE A. KENYON |       |                | Chief Financial Officer (Principal       |     | April 29, 2005 |
|   Lawrence A. Kenyon    |       |                | Financial Officer and  Principal         |     |   |
|                         |       | Accounting Officer) |                                     |     |

 

9

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