As
filed with the Securities and Exchange Commission on November 15,
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)
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New
Jersey
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57-1150621
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification Number)
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200
Executive Drive, Suite 340
West
Orange, New Jersey 07052
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(Address
of Registrant’s principal executive
offices)
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LINCOLN
EDUCATIONAL SERVICES CORPORATION
2006
EMPLOYEE STOCK PURCHASE PLAN
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(Full
title of the plans)
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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
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(Name,
address and telephone number of agent for
service)
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With
copies of all communication to:
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Rohan
S. Weerasinghe, Esq.
Shearman
& Sterling LLP
599
Lexington Avenue
New
York, New York 10022
(212)
848-7179
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities to be
Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Offering
Price
Per
Share (2)
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
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Ordinary
Shares of Common Stock of Lincoln Educational Services
Corporation
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||||
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2006
Employee Stock Purchase Plan
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1,000,000
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$13.12
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$13,120,000
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$1,403.84
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(1)
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This
registration statement on Form S-8 (this “Registration Statement”)
represents an aggregate of 1,000,000 shares of common stock, no par
value
per share (“Common Stock”) of Lincoln Educational Services Corporation
(the “Registrant”) available for issuance under the Lincoln Educational
Services Corporation 2006 Employee Stock Purchase Plan (the “Plan”).
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended
(the
“Securities Act”), this Registration Statement shall also cover any
additional shares of Common Stock that become issuable under the
Plan 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.
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(2)
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Pursuant
to Rules 457(c) and 457(h) under the Securities Act, the Proposed
Maximum
Offering Price Per Share as to the 1,000,000 shares of Common Stock
of the
Registrant registered with respect to future awards granted under
the Plan
is based on the average of the high and low prices of the Registrant’s
Common Stock reported on the Nasdaq National Market on November 14,
2006
and is estimated solely for the purpose of calculating the registration
fee.
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Part
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
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Item
1.
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Plan
Information.*
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Item
2.
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Registrant
Information and Employee Plan Annual Information.
*
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_____________
*
Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act and the “Note” to Part I of Form S-8.
Part
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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Item
3.
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Incorporation
of Documents by Reference.
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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.
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(a)
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the
Registrant’s annual report on Form 10-K for the period ended December 31,
2005 (filed on March 27, 2006);
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(b)
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the
Registrant’s quarterly reports on Form 10-Q for the quarterly periods
ended March 31, 2006 (filed on May 15, 2006), June 30, 2006 (filed
on
August 11, 2006) and September 30, 2006 (filed on November 14,
2006);
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(c)
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the
Registrant’s current reports on Form 8-K filed on January 6, 2006,
February 28, 2006, April 4, 2006, May 4, 2006, May 26, 2006, August
3,
2006, October 2, 2006 and November 9, 2006; and
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(d)
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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, including any amendments or reports filed for the purpose
of
updating such description.
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In
addition, all documents that the Registrant subsequently files with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), 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.
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Item
4.
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Description
of Securities.
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Not
applicable.
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Item
5.
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Interests
of Named Experts and
Counsel.
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Alexandra
M. Luster, the Vice President, General Counsel and Corporate Secretary of the
Registrant, has rendered the opinion that is included as Exhibit 5.1 to this
Registration Statement. Ms. Luster currently holds options to purchase a total
of 9,000 shares of the Registrant’s Common Stock.
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Item
6.
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Indemnification
of Directors and Officers.
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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 Securities Act and is therefore unenforceable.
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Item
7.
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Exemption
from Registration Claimed.
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Not
applicable.
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Item
8.
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Exhibits.
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See
attached Exhibit Index.
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Item
9.
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Undertakings.
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(a)
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The
Registrant hereby undertakes:
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(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 the Registrant 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) The
Registrant 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, the Registrant has 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, the Registrant 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 November 15, 2006.
| LINCOLN EDUCATIONAL SERVICES CORPORATION | |||
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By:
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/s/
Cesar Ribeiro
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Name:
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Cesar
Ribeiro
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Title:
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Chief
Financial Officer
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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 November
15, 2006.
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Name
and Signature
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Title
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/s/
David F. Carney
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Chief
Executive Officer and Chairman of the Board of Directors (Principal
Executive Officer)
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David
F. Carney
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/s/
Cesar Ribeiro
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Senior
Vice-President, Chief Financial Officer and Treasurer (Principal
Accounting and Financial Officer)
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Cesar
Ribeiro
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/s/
Alexis P. Michas
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Director
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Alexis
P. Michas
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/s/
James J. Burke, Jr.
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Director
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James
J. Burke, Jr.
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/s/
Steven W. Hart
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Director
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Steven
W. Hart
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/s/
Jerry G. Rubenstein
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Director
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Jerry
G. Rubenstein
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/s/
Paul E. Glaske
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Director
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Paul
E. Glaske
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/s/
Peter S. Burgess
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Director
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Peter
S. Burgess
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/s/
J. Barry Morrow
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Director
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J.
Barry Morrow
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/s/
Celia Currin
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Director
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Celia
Currin
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EXHIBIT
INDEX
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Exhibit
No.
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Name
of Exhibit
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3.1
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Certificate
of Incorporation of the Registrant (incorporated by reference to
Exhibit
3.1 to the Registrant’s Registration Statement on Form S-1 originally
filed on March 29, 2005)
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3.2
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Bylaws
of the Registrant, as amended (incorporated by reference to Exhibit
3.3 to
the Registrant’s Registration Statement on Form S-1 originally filed on
March 29, 2005 and Exhibit 3.1 to the Registrant’s Current Report on Form
8-K filed on June 28, 2005)
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4.1
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Lincoln
Educational Services Corporation 2006 Employee Stock Purchase Plan
(incorporated by reference to Appendix A to the Registrant’s Definitive
Proxy Statement filed on April 24, 2006)
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Opinion
of Alexandra M. Luster, Vice President, General Counsel and Corporate
Secretary of the Registrant, regarding the legality of the securities
offered hereby
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Consent
of Deloitte & Touche LLP
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23.2*
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Consent
of Alexandra
M. Luster, Vice President, General Counsel and Corporate Secretary
of the
Registrant (included in Exhibit 5.1)
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24.1*
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Power
of Attorney (included in Part II of the Registration Statement under
the
caption “Signatures”)
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_______________________________
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*
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Filed
herewith
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[LINCOLN
EDUCATIONAL SERVICES CORPORATION LETTERHEAD]
November
15, 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 5.1 to Lincoln’s Registration Statement on Form S-8 (the
“Registration Statement”). The Registration Statement covers up to 1,000,000
shares of Lincoln’s common stock, no par value per share (the “Shares”) to be
issued and sold under the 2006 Employee Stock Purchase Plan (the
“Plan”).
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 Plan, will be legally issued, fully paid and
non-assessable.
I
hereby
consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement.
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Very
truly yours,
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/s/
Alexandra M. Luster
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General
Counsel
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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.
/s/
Deloitte & Touche LLP
Parsippany,
New Jersey
November
13, 2006