UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Amendment No. 5*
NeighborCare, Inc.
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(Name of Issuer)
Common Stock, Par Value $0.02 Per Share
(Title of Class of Securities)
64015Y-10-4
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(CUSIP Number)
Steve Chaiken, Esq.
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
(212) 902-1000
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
January 7, 2004
---------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box [_].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following pages)
Page 1 of 8 Pages
13D
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CUSIP NO. 64015Y-10-4 Page 2 of 8 Pages
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1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Goldman, Sachs & Co.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(SEE INSTRUCTIONS) (a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS (SEE INTRUCTIONS):
OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e) [X]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
New York
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7. SOLE VOTING POWER
NUMBER OF 0
SHARES ---------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 3,825,025
REPORTING ---------------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH 0
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10. SHARED DISPOSITIVE POWER
3,825,025
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,825,025
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [X]
CERTAIN SHARES
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9%
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14. TYPE OF REPORTING PERSON:
BD-PN-IA
13D
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CUSIP NO. 64015Y-10-4 Page 3 of 8 Pages
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1. NAMES OF REPORTING PERSONS:
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
The Goldman Sachs Group, Inc.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(SEE INSTRUCTIONS) (a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3. SEC USE ONLY
--------------------------------------------------------------------------------
4. SOURCE OF FUNDS (SEE INTRUCTIONS):
AF-OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7. SOLE VOTING POWER
NUMBER OF 43,047
SHARES ---------------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 3,825,025
REPORTING ---------------------------------------------------------------
PERSON 9. SOLE DISPOSITIVE POWER
WITH 43,047
---------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
3,825,025
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,868,072
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES
--------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.0%
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14. TYPE OF REPORTING PERSON:
HC-CO
CUSIP NO. 64015Y-10-4 Page 4 of 8 Pages
AMENDMENT NO. 5 TO
SCHEDULE 13D
RELATING TO THE COMMON STOCK OF
NEIGHBORCARE, INC.
The Goldman Sachs Group, Inc. ("GS Group") and Goldman, Sachs & Co. ("Goldman
Sachs" and together with GS Group, the "Filing Persons")(1) hereby amend and
supplement the Statement on Schedule 13D as most recently amended by Amendment
No. 4 thereto filed December 5, 2003 (as amended, the "Schedule 13D"), with
respect to the Common Stock, $0.02 par value per share (the "Common Stock"), of
NeighborCare, Inc., a Pennsylvania corporation (the "Company"). This Amendment
No. 5 amends the Schedule 13D only with respect to the items listed below.
Unless otherwise indicated, all capitalized terms used but not defined herein
shall have the same meaning ascribed to them in the Schedule 13D.
As a result of the transactions reported herein, the Filing Persons' ownership
is under 10% of the Company's outstanding shares of Common Stock; they will
hereafter report on a Schedule 13G.
(1) Neither the present filing nor anything contained herein shall be construed
as an admission that any Filing Person constitutes a "person" for any purposes
other than Section 13(d) of the Act.
ITEM 2 IDENTITY AND BACKGROUND
Schedule II to the Schedule 13D is hereby amended by deleting such schedule in
its entirety and replacing it with the Schedule II attached hereto.
ITEM 5. INTEREST SECURITIES OF THE ISSUER
Items 5(a), (b) and (c) are hereby amended by deleting such sections in their
entirety and replacing them with the following:
(a) As of January 7, 2004, Goldman Sachs may be deemed to beneficially and
directly own an aggregate of 3,825,025 shares of Common Stock, representing in
the aggregate approximately 8.9% of the outstanding shares of Common Stock
reported to be outstanding as of December 17, 2003, as disclosed in the
Company's Annual Report on Form 10-K for the fiscal year ended September 30,
2003, as amended by Amendment No. 1 thereto (the "10-K"), and in accordance with
Rule 13d-3(d)(1).
As of January 7, 2004, GS Group may be deemed to beneficially own an aggregate
of 3,868,072 shares of Common Stock, consisting of (i) 3,825,025 shares of
Common Stock beneficially owned by GS Group through Goldman Sachs as described
above, and (ii) 43,047 shares of Common Stock underlying immediately exercisable
Options, representing in the aggregate approximately 9.0% of the outstanding
shares of Common Stock as disclosed in the 10-K and in accordance with Rule
13d-3(d)(1). The Options were granted under the Company's 2001 Stock Option Plan
to Joseph A. LaNasa III, a managing director of Goldman Sachs. Mr. LaNasa has an
understanding with GS Group pursuant to which he holds the Options for the
benefit of GS Group.
13D
CUSIP NO. 64015Y-10-4 Page 5 of 8 Pages
In accordance with the Securities and Exchange Commission (the "SEC") Release
No. 34-39538 (January 12, 1998), this filing reflects the securities
beneficially owned by the investment banking division ("IBD") of GS Group and
its subsidiaries and affiliates (collectively, "GSG"). This filing does not
reflect securities, if any, beneficially owned by any other operating unit of
GSG. IBD disclaims beneficial ownership of the securities beneficially owned by
(i) any client accounts with respect to which IBD or its employees have voting
or investment discretion, or both and (ii) certain investment entities, of which
IBD is the general partner, managing general partner or other manager, to the
extent interests in such entities are held by persons other than IBD.
(b) Each Filing Person shares the power to vote or direct the vote and to
dispose or to direct the disposition of the Common Stock beneficially owned by
such Filing Person as indicated above, except that GS Group has sole voting and
dispositive power with regard to the 43,047 shares of Common Stock underlying
the Options. The filing of this Schedule 13D shall not be construed as an
admission that Goldman Sachs is, for the purposes of Section 13(d) of the Act or
any other purpose, the beneficial owner of such 43,047 shares of Common Stock or
the related Options.
(c) The following transactions were effected in shares of Common Stock between
December 3, 2003, the day following the date of event requiring the filing of
the immediately preceding amendment to the Schedule 13D, and January 7, 2004,
the date of event requiring the filing of this amendment to the Schedule 13D,
inclusive:
On December 22, 2003, the Company filed a Current Report on Form 8-K with the
Securities and Exchange Commission in connection with its December 19, 2003
announcement that that it had elected to exercise its right to convert all of
its outstanding shares of Convertible Preferred Stock into shares of Common
Stock. In addition, in connection with the completion of the Company's spin-off
transaction on December 1, 2003 whereby its eldercare and rehabilitation
businesses became a separate publicly traded company, the conversion ratio of
the Convertible Preferred Stock was adjusted to 8.9375 shares of Common Stock
for each share of Convertible Preferred Stock, which includes dividends accrued
but unpaid on the Convertible Preferred Stock through the date of conversion.
The conversion was deemed effective as of December 16, 2003. Accordingly, the
71,799 shares of Convertible Preferred Stock held by Goldman Sachs, representing
all shares of Convertible Preferred Stock held by it (excluding accrued
paid-in-kind dividends on the Convertible Preferred Stock which were accounted
for in the conversion ratio) were converted into 641,703 shares of Common Stock.
On December 3, 2003 Goldman Sachs purchased 100 shares of Common Stock at $23.62
per share; 100 shares of Common Stock at $23.66 per share; 1398 shares of Common
Stock at $23.3782 per share; and 658 shares of Common Stock at $23.37 per share.
On December 3, 2003 Goldman Sachs sold 100 shares of Common Stock at $23.30 per
share; 39 shares of Common Stock at $23.31 per share; 100 shares of Common Stock
at $23.33 per share; 39 shares of Common Stock at $23.37 per share; 184 shares
of Common Stock at $23.53 per share; and 936 shares of Common Stock at $23.37
per share. On December 19, 2003 Goldman Sachs sold 12,500 shares of Common Stock
at $19.01 per share; and 40,500 shares of Common Stock at $19.15 per share. On
January 6, 2004 Goldman Sachs sold 250,000 shares of Common Stock at $20.61383
per share. On January 7, 2004 Goldman Sachs sold 145,500 shares of Common Stock
at $20.8344 per share. Each transaction described in this paragraph was
effected in the ordinary course of business of Goldman Sachs and was effected on
either The New York Stock Exchange, The Nasdaq National Market or The Pacific
Stock Exchange.
13D
CUSIP NO. 64015Y-10-4 Page 6 of 8 Pages
Except as described in this Schedule 13D, no transactions in the shares of
Common Stock were effected by the Filing Persons or, to their knowledge, any of
the persons listed on Schedule I hereto, between December 2, 2003 and January 7,
2004, inclusive.
Page 7 of 8 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge
and belief, I certify that the information set forth in
this statement is true, complete and correct.
Dated: January 12, 2004
THE GOLDMAN SACHS GROUP, INC.
By: /s/ ROGER S. BEGELMAN
-----------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
GOLDMAN, SACHS & CO.
By: /s/ ROGER S. BEGELMAN
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Name: Roger S. Begelman
Title: Attorney-in-fact
13D
CUSIP NO. 64015Y-10-4 Page 8 of 8 Pages
SCHEDULE II
On April 6, 2000, in connection with an industry-wide investigation by the
Securities and Exchange Commission (the "SEC") relating to the pricing of
government securities in advance refunding transactions, Goldman, Sachs & Co.
(the "Firm") joined in a global settlement resolving the SEC investigation as
well as a related qui tam lawsuit purportedly brought on behalf of the United
States entitled United States ex rel. Lissack v. Goldman, Sachs & Co., et al.,
95 Civ. 1363 (S.D.N.Y.)(BSJ). Pursuant to the settlement, without admitting or
denying the findings, the Firm consented to the issuance of an SEC
administrative order (SEA Rel. No. 42640) which, among other things, found that
the Firm had violated Sections 17(a)(2) and (3) of the Securities Act of 1933 in
connection with such pricing of government securities, required the Firm to
cease and desist from violating such provisions, and ordered the Firm to make
payments totaling approximately $5.1 Million to the U.S. Treasury and $104,000
to two municipalities. Under the global settlement, the qui tam lawsuit was
dismissed with prejudice, and the Internal Revenue Service agreed not to
challenge the tax-free nature of the refundings by virtue of the pricing of such
securities.
In November 2002, the SEC, the National Association of Securities Dealers
("NASD") and the New York Stock Exchange, Inc. ("NYSE") alleged that five broker
dealers, including the Firm, violated Section 17(a) of the Securities Exchange
Act of 1934 and Rule 17a-4 thereunder, NYSE Rules 440 and 342 and NASD Rules
3010 and 3110 by allegedly failing to preserve electronic mail communications
for three years and/or to preserve electronic mail communications for the first
two years in an accessible place, and by allegedly having inadequate supervisory
systems and procedures in relation to the retention of electronic mail
communications. Without admitting or denying the allegations, the five broker
dealers, including the Firm, consented to censure by the SEC, NASD and NYSE and
to the imposition of a cease-and-desist order by the SEC, and the Firm paid a
total fine of $1,650,000 ($550,000 each to the SEC, NASD and NYSE). The Firm
also undertook to review its procedures regarding the preservation of electronic
mail communications for compliance with the federal securities laws and
regulations and the rules of the NASD and NYSE, and to confirm within a
specified period of time that it has established systems and procedures
reasonably designed to achieve compliance with those laws, regulations and
rules.
On April 28, 2003, without admitting or denying liability, ten investment
banking firms, including the Firm, entered into global settlements with the SEC,
NYSE, NASD and certain states to resolve the investigations relating to equity
research analyst conflicts of interest. The Firm was charged with violating NYSE
Rules 342, 401, 472 and 475, and NASD Conduct Rules 2110, 2210 and 3010. The
Firm also agreed to a censure by the NYSE and the NASD and to pay a total of
$110,000,000 and to adopt a set of industry-wide reforms of its research and
investment banking businesses and to adopt certain restrictions on the
allocations of "hot" IPO shares. The terms of the global settlement were entered
in an order by a federal court in the Southern District of New York on October
31, 2003 (Civil Action Number 03CV2944).