-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Dfa9r3LafDSYGj2N6NpA5aydEeq58jgbUlXDLwIJz6VbwnznTK2osQARKjUJrWWb a4bGfuIbStRtMliOsy8iFA== 0000950172-04-002327.txt : 20041006 0000950172-04-002327.hdr.sgml : 20041006 20041006154429 ACCESSION NUMBER: 0000950172-04-002327 CONFORMED SUBMISSION TYPE: DEFA14A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20041006 DATE AS OF CHANGE: 20041006 EFFECTIVENESS DATE: 20041006 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEOPHARM INC CENTRAL INDEX KEY: 0000942788 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 510327886 STATE OF INCORPORATION: DE FISCAL YEAR END: 0907 FILING VALUES: FORM TYPE: DEFA14A SEC ACT: 1934 Act SEC FILE NUMBER: 001-12493 FILM NUMBER: 041068323 BUSINESS ADDRESS: STREET 1: 150 FIELD DRIVE STREET 2: SUITE 195 CITY: LAKE FORREST STATE: IL ZIP: 60045 BUSINESS PHONE: 8472958678 MAIL ADDRESS: STREET 1: C/O WILSON SONSIN GOODRICH & ROSETI STREET 2: 650 PAGE MILL ROAD CITY: PALO ALTO STATE: CA ZIP: 94304 DEFA14A 1 ch420065.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 14A (Rule 14a-101) INFORMATION REQUIRED IN PROXY STATEMENT SCHEDULE 14A INFORMATION PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. ) Filed by the Registrant [X] Filed by a Party other than the Registrant [ ] Check the appropriate box: [ ] Preliminary Proxy Statement [ ] Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) [ ] Definitive Proxy Statement [X] Definitive Additional Materials [ ] Soliciting Material Pursuant to sec. 240.14a-12 NEOPHARM, INC. (Name of Registrant as Specified in its Charter) (Name of Person(s) Filing Consent Statement, if other than the Registrant) Payment of Filing Fee (Check the appropriate box): [X] No fee required. [ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(l) and 0-11 (1) Title of each class of securities to which transaction applies: (2) Aggregate number of securities to which transaction applies: (3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is calculated and state how it was determined): (4) Proposed maximum aggregate value of transaction: (5) Total fee paid: [ ] Fee paid previously with preliminary materials. [ ] Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. (1) Amount Previously Paid: (2) Form, Schedule or Registration Statement No.: (3) Filing Party: (4) Date Filed: [NeoPharm Logo graphic omitted] ***FOR IMMEDIATE RELEASE *** CONTACT: Larry Kenyon, Chief Financial Officer Paul Arndt, Corporate lkenyon@neophrm.com Communications Manager 847-295-8678 x 210 parndt@neophrm.com 847-295-8678 x 215 AKORN IN DEFAULT UNDER PROMISSORY NOTE TO NEOPHARM LAKE FOREST, ILLINOIS - OCTOBER 6, 2004 - NeoPharm, Inc. (Nasdaq: NEOL) announced today that an event of default has occurred under Akorn, Inc.'s $3,250,000 Promissory Note to NeoPharm. NeoPharm had originally provided the financing to Akorn to help fund the completion of a manufacturing facility, a portion of the production of which would be allocated to provide lyophilization manufacturing services for NeoPharm's lyophilized drug product candidates. The facility has been subject to warning letter sanctions imposed by the FDA pursuant to Form 483. Under the terms of the Note, an event of default occurs if NeoPharm's Processing Agreement with Akorn fails to go into effect on or before October 1, 2004. Due to the fact that, as of October 4, 2004, the warning letter sanctions imposed by the FDA pursuant to Form 483 with respect to Akorn's manufacturing facility had not been lifted, the Processing Agreement did not timely go into effect and an event of default occurred automatically under the Note. As a result of this default, outstanding principal and interest under the Note became immediately due and payable, subject to the applicable provisions of the subordination agreement between NeoPharm and Akorn's senior lenders. The subordination agreement provides, among other things, that Akorn may not make any payments to NeoPharm, and NeoPharm may not enforce certain remedies against Akorn under the Note until Akorn's senior debt is paid in full and the commitment for the senior debt is terminated. NeoPharm does not anticipate that this default will have an adverse impact on its ability to acquire drug supplies for clinical trials using NeoPharm's lyophilized drug product candidates or on its financial results. "We have prepared a manufacturing plan with both primary and secondary providers of lyophilization manufacturing services other than Akorn and we have previously written off the entire amount of the Note," said Gregory P. Young, NeoPharm's President and Chief Executive Officer. "As a result, Akorn's failure to meet its obligations should not have an impact on our clinical trials or our financial results. In the meantime, we intend to pursue our rights under the Promissory Note." NeoPharm's former chairman, John Kapoor, is Akorn's chairman and largest stockholder on a fully diluted basis. Mr. Kapoor recently began a solicitation of consents of NeoPharm's stockholders to remove all of NeoPharm's independent directors and replace them with nominees selected by Mr. Kapoor. About NeoPharm NeoPharm, Inc., based in Lake Forest, IL, is a publicly traded biopharmaceutical company dedicated to the research, development and commercialization of new and innovative cancer drugs for therapeutic applications. The Company has a portfolio of compounds in various stages of development. Additional information about NeoPharm, recent news releases, and scientific abstracts related to NeoPharm's clinical and pre-clinical research can be obtained by visiting NeoPharm's Website at: www.neophrm.com, or calling Paul Arndt at 847-295-8678, x215. _______________________________________________________________________________ Forward Looking Statements - This press release contains "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. The Company has tried to identify such forward-looking statements by use of such words as "expects," "intends," "hopes," "anticipates," "believes," "could," "may," "evidences" and "estimates," and other similar expressions, but these words are not the exclusive means of identifying such statements. Such statements include, but are not limited to, any statements relating to the Company's drug development program, including, but not limited to the initiation, progress and outcomes of clinical trials of the Company's drug product candidates, and any other statements that are not historical facts. Such statements involve risks and uncertainties, including, but not limited to, those risks and uncertainties relating to difficulties or delays in financing, development, testing, regulatory approval, production and marketing of the Company's drug and non-drug compounds, uncertainty regarding the availability of third party production capacity, uncertainty regarding the outcome of damage claims made by or against the Company, the Company's ability to cut back on its funding of certain of its development projects in order to conserve its cash resources, the ability of the Company to procure additional future sources of financing, unexpected adverse side effects or inadequate therapeutic efficacy of the Company's drug and non-drug compounds that could slow or prevent products coming to market, uncertainty regarding the Company's ability to market its drug and non-drug products directly or through independent distributors, the uncertainty of patent protection for the Company's intellectual property or trade secrets, uncertainty regarding the efforts of John N. Kapoor to obtain consent for, among other things, removal of four of the Company's current independent directors, and other risks detailed from time to time in filings the Company makes with the Securities and Exchange Commission including its annual reports on Form 10-K and quarterly reports on Forms 10-Q. Such statements are based on management's current expectations, but actual results may differ materially due to various factors, including those risks and uncertainties mentioned or referred to in this press release. Accordingly, you should not rely on these forward-looking statements as a prediction of actual future results. -----END PRIVACY-ENHANCED MESSAGE-----