As filed with the Securities and Exchange Commission on March 27, 2006
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
LINCOLN EDUCATIONAL SERVICES CORPORATION
(Exact name of Registrant as specified in its charter)
New Jersey 57-1150621
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
200 Executive Drive, Suite 340
West Orange, New Jersey 07052
(Address of Registrant's principal executive offices)
2005 LONG-TERM INCENTIVE PLAN
2005 NON-EMPLOYEE DIRECTORS RESTRICTED STOCK PLAN
(Full title of the plans)
David F. Carney
Chairman of the Board and Chief Executive Officer
Lincoln Educational Services Corporation
200 Executive Drive, Suite 340
West Orange, New Jersey 07052
(973) 736-9340
(Name, address and telephone number of agent for service)
With copies of all communication to:
Rohan S. Weerasinghe, Esq.
Shearman & Sterling LLP
599 Lexington
New York, New York 10022
(212) 848-7179
CALCULATION OF REGISTRATION FEE
================================== =============== =================== ===================== ==========================
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered (1) Registered (1) Offering Price Aggregate Offering Registration Fee
Per Share Price
- ---------------------------------- --------------- ------------------- --------------------- -------------------------
Ordinary Shares of Common Stock
of Lincoln Educational Services
Corporation
- ---------------------------------- --------------- ------------------- --------------------- -------------------------
2005 Long-Term Incentive Plan 903,500 $16.69(2) $15,079,415 $1,613.50
- ---------------------------------- --------------- ------------------- --------------------- -------------------------
2005 Long-Term Incentive Plan 96,500 $14.21(3) $ 1,371,265.00 $ 146.73
- ---------------------------------- --------------- ------------------- --------------------- -------------------------
2005 Non-Employee Directors 74,336 $16.69[2] $ 1,240,667.84 $ 132.76
Restricted Stock Plan
- ---------------------------------- --------------- ------------------- --------------------- -------------------------
2005 Non-Employee Directors 25,664 $18.70[4] $ 479,916.80 $ 51.36
Restricted Stock Plan
- ---------------------------------- --------------- ------------------- --------------------- -------------------------
(1) In addition, this Registration Statement shall also cover any
additional shares of Common Stock which become issuable under the plans
being registered pursuant to this Registration Statement by reason of
any stock dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results
in an increase in the number of the Registrant's outstanding shares of
Common Stock.
(2) Estimated in accordance with Rules 457(c) and 457(h) under the
Securities Act of 1933, as amended (the "Securities Act") solely for
the purpose of determining the registration fee. Estimated based on the
average of the bid and asked prices of the Common Stock, no par value
per share, reported on the Nasdaq National Market on March 20, 2006.
(3) Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, the
proposed maximum offering price per share as to 96,500 Ordinary Shares
of Common Stock of the Registrant registered with respect to currently
outstanding options granted under the 2005 Long-Term Incentive Plan is
based on the average weighted exercise price per share of such options
and is estimated solely for the purpose of calculating the registration
fee.
(4) Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, the
proposed maximum offering price per share as to the 25,664 Ordinary
Shares of Common Stock of the Registrant registered with respect to
currently outstanding restricted stock granted under the 2005
Non-Employee Directors Restricted Stock Plan is based on the weighted
average of such restricted stock and is estimated solely for the
purpose of calculating the registration fee.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Item 1 and Item 2 of Part I of
Form S-8 is omitted from this filing in accordance with Rule 428 under the
Securities Act of 1933, as amended (the "Securities Act"), and the introductory
note to Part I of Form S-8. The documents containing the information specified
in Part I will be delivered to the participants in the plans covered by this
Registration Statement as required by Rule 428(b)(1).
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated as of their respective dates in
this Registration Statement by reference.
(a) the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2005;
(b) the Registrant's Current Reports on Form 8-K filed with the
Commission on January 6, 2006, February 28, 2006; and
(c) the description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form S-1 (File No.
333-123644), filed on June 21, 2005 with the Commission.
All documents that we subsequently file with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered have been
sold, or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and are a part
thereof from the date of filing of such documents, other than any portion of a
Current Report on Form 8-K that has been "furnished" under Items 2.02 and 7.01
of Form 8-K (and any related exhibits).
Any statement contained in a document incorporated or deemed
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed document
which is incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Alexandra M. Luster, Lincoln's Vice President, General Counsel
and Corporate Secretary, has rendered the opinion that is included as Exhibit 5
to this Registration Statement. Mrs. Luster holds options to purchase a total of
30,000 shares of Lincoln's common stock and may, in the future, receive
additional stock options or other awards under the 2005 Long Term Incentive
Plan.
Item 6. Indemnification of Directors and Officers.
The New Jersey Business Corporation Act permits or requires
indemnification of officers and directors in the event that certain statutory
standards of conduct are met.
The Registrant's certificate of incorporation and bylaws
limits the liability of directors to the maximum extent permitted by New Jersey
law. Specifically, a director will not be personally liable for monetary damages
for breach of fiduciary duty as a director, except liability for: (i) any breach
of their duty of loyalty to the Registrant or the Registrant's stockholders;
(ii) acts or omissions not in good faith or which involve a knowing violation of
the law; or (iii) any transaction from which the director derived an improper
personal benefit. The limitation of liability does not apply to liabilities
arising under the federal securities laws and does not affect the availability
of equitable remedies such as injunctive relief or rescission.
The Registrant's bylaws provide that it will indemnify its
directors and officers and may indemnify its employees and other agents to the
fullest extent permitted by law. The Registrant believes that indemnification
under its bylaws covers at least negligence and gross negligence on the part of
indemnified parties.
The Registrant's bylaws also provide that it will advance
expenses incurred by a director or officer in advance of the final disposition
of any action or proceeding and it may advance expenses incurred by its
employees or other agents in advance of the final disposition of any action or
proceeding. The Registrant's bylaws also permit it to secure insurance on behalf
of any officer, director, employee or other agent for any liability arising out
of his or her actions in his or her capacity as an officer, director, employee
or other agent. The Registrant believes that these bylaw provisions and
indemnification agreements are necessary to attract and retain the services of
highly qualified persons as directors and officers.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description of Document
----------- -----------------------
4.1 Bylaws of Lincoln Educational Services Corporation
(incorporated by reference from the Form S-1 filed on
June 21, 2005).
4.2 Lincoln Educational Services Corporation 2005
Long-Term Incentive Plan (incorporated by reference
from the Form S-1 filed on June 21, 2005).
4.3 Lincoln Educational Services Corporation 2005
Non-Employee Directors Restricted Stock Plan
(incorporated by reference from the Form S-1 filed on
June 21, 2005)
5 Opinion of Alexandra M. Luster, Esq.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Alexandra M. Luster, Esq. (included in
Exhibit 5).
24 Power of Attorney (included as part of the signature
pages to this Registration Statement).
Item 9. Undertakings.
(a) We undertake:
(1) To file, during any period in which offers or sales are
being made of securities registered hereby, a post-effective amendment
to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the information required
to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission
by us pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this Registration Statement;
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) We further undertake that, for purposes of determining any
liability under the Securities Act, each filing of our annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in
the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
for our payment of expenses incurred or paid by one of our directors, officers
or controlling persons in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, then, unless in the opinion of
our counsel the matter has been settled by controlling precedent, we will submit
to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, Lincoln
Educational Services Corporation certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in West Orange, New Jersey, on March 27,
2006.
LINCOLN EDUCATIONAL SERVICES CORPORATION
By: /s/ Cesar Ribeiro
-----------------------
Name: Cesar Ribeiro
Title: Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Cesar Ribeiro and David F.
Carney as such person's true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for such person and in such person's
name, place and stead, in any and all capacities, to sign any amendments to this
Registration Statement, including post-effective amendments, and registration
statements filed pursuant to Rule 462 under the Securities Act, and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Commission, and does hereby grant unto each said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that each of said attorney-in-fact and agent, or
his substitute therefor, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following persons in the
indicated capacities on March 27, 2006.
Name and Signature Title
- ------------------ -----
/s/ David F. Carney Chief Executive Officer and Chairman of the
- ------------------------------ Board of Directors
David F. Carney
/s/ Lawrence E. Brown President, Chief Operating Officer
- ------------------------------
Lawrence E. Brown
/s/ Scott M. Shaw Senior Vice-President, Strategic Planning &
- ------------------------------ Development
Scott M. Shaw
/s/ Cesar Ribeiro Vice-President, Chief Financial Officer and
- ------------------------------ Treasurer
Cesar Ribeiro
/s/ Alexis P. Michas Director
- ------------------------------
Alexis P. Michas
/s/ James J. Burke, Jr. Director
- ------------------------------
James J. Burke, Jr.
/s/ Steven W. Hart Director
- ------------------------------
Steven W. Hart
/s/ Jerry G. Rubenstein Director
- ------------------------------
Jerry G. Rubenstein
/s/ Paul Glaske Director
- ------------------------------
Paul Glaske
/s/ Peter S. Burgess Director
- ------------------------------
Peter S. Burgess
Director
/s/ J. Barry Morrow
- ------------------------------
J. Barry Morrow
/s/ Celia Currin Director
- ------------------------------
Celia Currin
EXHIBIT 5
[LINCOLN EDUCATIONAL SERVICES CORPORATION LETTERHEAD]
March 27, 2006
Lincoln Educational Services Corporation
200 Executive Drive, Suite 340
West Orange, New Jersey 07052
RE: Lincoln Educational Services Corporation Form S-8
-------------------------------------------------
Ladies and Gentlemen:
As General Counsel of Lincoln Educational Services Corporation, a New Jersey
corporation ("Lincoln"), I have been requested to render this opinion for filing
as Exhibit 5 to Lincoln's Registration Statement on Form S-8 (the "Registration
Statement"). The Registration Statement covers up to 1,100,000 shares of
Lincoln's common stock, no par value per share (the "Shares") to be issued and
sold under the 2005 Long-Term Incentive Plan and the 2005 Non-Employee Directors
Restricted Stock Plan (collectively, the "Plans").
I have examined the originals or photocopies or certified copies of such records
of Lincoln and other documents as I have deemed necessary or appropriate for the
purpose of this opinion. In such examination, I have assumed the genuineness of
all signatures, the authenticity of all documents submitted to me as originals,
the conformity to originals of all documents submitted to me as certified copies
or photocopies and the authenticity of the originals of such latter documents.
Based on the foregoing, I am of the opinion that the Shares, when issued and
delivered by Lincoln pursuant to the Plans, will be legally issued, fully paid
and non-assessable.
I hereby consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
Alexandra M. Luster
General Counsel
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 23, 2006 relating to the
financial statements and financial statement schedule of Lincoln Educational
Services Corporation appearing in the Annual Report on Form 10-K of Lincoln
Educational Services Corporation for the year ended December 31, 2005.
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
March 27, 2006