As
filed with the Securities and
Exchange Commission on February 12, 2008.
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Registration
No.
333-148406
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UNITED
STATES
SECURITIES
AND EXCHANGE
COMMISSION
Washington,
D.C.
20549
Amendment
No. 1
to
FORM
S-3
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
(973)736-9340
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal executive offices)
David F. Carney
Lincoln
Educational Services
Corporation
200
Executive Drive, Suite
340
West
Orange, New Jersey
07052
(973)736-9340
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copy
to:
Rohan
S. Weerasinghe,
Esq.
Ferdinand
J. Erker,
Esq.
Shearman
&
Sterling
LLP
599
Lexington
Avenue
New
York, New York
10022
(212)
848-4000
Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective
If
the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. ¨
If
any of
the securities being registered on this Form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If
this
Form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. ¨
If
this
Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. ¨
If
this
form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If
this
form is a post-effective amendment to a registration statement filed pursuant
to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. ¨
The
registrant hereby amends this
registration statement on such date or dates as may be necessary to delay its
effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933, as amended, or until the registration statement shall become effective
on
such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
| The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted. |
SUBJECT
TO COMPLETION, DATED FEBRUARY
12, 2008
PROSPECTUS
20,566,140
Shares
Lincoln
Educational Services
Corporation
Common
Stock
The
selling stockholders named in this prospectus under the caption “Selling
Stockholders” may offer and sell, from time to time, up to 20,566,140 shares of
our common stock. We will not receive any of the proceeds from the
sale of shares of our common stock by the selling stockholders.
When
the
selling stockholders offer shares of our common stock, we will provide the
specific terms of such offerings in supplements to this
prospectus. The shares of our common stock may be offered for sale by
the selling stockholders in a number of different ways and at market prices
prevailing at the time of sale or at privately negotiated
prices. More information about how the shares of our common stock may
be sold is included in the section entitled “Plan of Distribution” contained in
this prospectus.
This
prospectus may not be used to sell shares of our common stock unless accompanied
by a prospectus supplement.
Our
common stock is listed on the Nasdaq Global Market under the symbol
“LINC.”
Investing
in our common stock
involves risks. You should carefully read the risks that are
described in the “Risk Factors” section beginning on page 2 of this prospectus,
in the “Risk Factors” section of our periodic reports filed with the Securities
and Exchange Commission and in any applicable prospectus supplement before
investing in our common stock.
Neither
the Securities and Exchange
Commission nor any state securities commission has approved or disapproved
of
these securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The
date of this prospectus
is
..
You
should rely only on the
information included in or incorporated by reference into this prospectus and
any accompanying prospectus supplement or included in any free writing
prospectus that we may file with the Securities and Exchange Commission, or
the
SEC, in connection with this offering. Neither we nor the selling
stockholders have authorized anyone to provide you with any other
information. If anyone provides you with different or additional
information you should not rely on it. Neither we nor the selling
stockholders are making an offer to sell these securities in any jurisdiction
where the offer or sale is not permitted. The information in this
prospectus, any accompanying prospectus supplement and the documents
incorporated by reference herein and therein is accurate only as of their
respective dates or on other dates specified in those documents. Our
business, financial condition, results of operations and prospects may have
changed since those dates.
TABLE
OF CONTENTS
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10
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ABOUT
THIS
PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with
the SEC using the SEC’s “shelf registration” rules. Under the shelf
registration process, using this prospectus, together with a prospectus
supplement, each of the selling stockholders named in this prospectus under
the
caption “Selling Stockholders” may offer and sell, from time to time, in one or
more offerings up to the aggregate number of shares of our common stock set
forth beside each such stockholder’s name.
This
prospectus provides you with a description of our common stock that the selling
stockholders may sell as well as other information you should know before
investing in our common stock. Each time the selling stockholders
sell our common stock, we will provide one or more prospectus supplements that
will contain specific information about the terms of that specific offering
of
our common stock and the specific manner in which it may be
offered. The prospectus supplement may also add to, update or change
any of the information contained in this prospectus. To the extent
that any statement we make in a prospectus supplement is inconsistent with
statements made in this prospectus, the statements made in this prospectus
will
be deemed modified or superseded by those made in the prospectus
supplement. You should read both this prospectus and the applicable
prospectus supplement together with the additional information described under
“Where You Can Find Additional Information and Incorporation of Certain
Information by Reference” before making an investment decision. This
prospectus may not be used to sell our common stock unless it is accompanied
by
a prospectus supplement.
This
prospectus contains summaries of certain provisions contained in some of the
documents described herein, but reference is made to the actual documents for
complete information. All of the summaries are qualified in their
entirety by the actual documents. Copies of some of the documents
referred to herein have been filed or will be filed or incorporated by reference
as exhibits to the registration statement of which this prospectus is a part,
and you may obtain copies of those documents as described below under “Where You
Can Find Additional Information and Incorporation of Certain Information by
Reference.” We urge you to read that registration statement in its
entirety, including all amendments, exhibits, schedules and supplements to
that
registration statement.
As
used
in this prospectus, “Lincoln,” the “Company,” “we,” “our,” or “us” mean Lincoln
Educational Services Corporation and its wholly owned
subsidiaries. The term “selling stockholders” refers, collectively,
to the selling stockholders named in this prospectus under the caption “Selling
Stockholders.”
FORWARD-LOOKING
STATEMENTS
This
prospectus and the documents incorporated by reference herein contain, or will
contain, “forward-looking statements” within the meaning of Section 27A of the
Securities Act of 1933, as amended, or the Securities Act, and Section 21E
of
the Securities Exchange Act of 1934, as amended, or the Exchange Act, which
include information relating to future events, future financial performance,
strategies, expectations, competitive environment, regulation and availability
of resources. These forward-looking statements include, without
limitation, statements regarding: proposed new programs; expectations that
regulatory developments or other matters will not have a material adverse effect
on our consolidated financial position, results of operations or liquidity;
statements concerning projections, predictions, expectations, estimates or
forecasts as to our business, financial and operating results and future
economic performance; and statements of management's goals and objectives and
other similar expressions concerning matters that are not historical
facts. Words such as “may,” “should,” “could,” “would,” “predicts,”
“potential,” “continue,” “expects,” “anticipates,” “future,” “intends,” “plans,”
“believes,” “estimates,” and similar expressions, as well as statements in
future tense, identify forward-looking statements.
Forward-looking
statements should not be read as a guarantee of future performance or results,
and will not necessarily be accurate indications of the times at, or by, which
such performance or results will be achieved. Forward-looking
statements are based on information available at the time those statements
are
made and/or management’s good faith belief as of that time with respect to
future events, and are subject to risks and uncertainties that could cause
actual performance or results to differ materially from those expressed in
or
suggested by the forward-looking statements. Important factors that
could cause such differences include, but are not limited to:
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·
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actual
or anticipated fluctuations in our results of
operations;
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·
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our
failure to comply with the extensive regulatory framework applicable
to
our industry or our failure to obtain timely regulatory approvals
in
connection with a change of control of our
company;
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·
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our
success in updating and expanding the content of existing programs
and
developing new programs in a cost-effective manner or on a timely
basis;
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·
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risks
associated with the opening of new
campuses;
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·
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risks
associated with integration of acquired
schools;
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·
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industry
competition;
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·
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our
ability to continue to execute our growth
strategies;
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·
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conditions
and trends in our industry;
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·
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general
and economic conditions; and
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·
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other
factors discussed under the headings “Risk Factors,” “Management's
Discussion and Analysis of Financial Condition and Results of Operations,”
“Business” and “Regulatory Environment” in this prospectus, any prospectus
supplement or in the documents incorporated herein by
reference.
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Forward-looking
statements speak only as of the date the statements are made. Except
as required under the federal securities laws and rules and regulations of
the
SEC, we undertake no obligation to update or revise forward-looking statements
to reflect actual results, changes in assumptions or changes in other factors
affecting forward-looking information. We caution you not to unduly
rely on the forward-looking statements when evaluating the information presented
herein.
LINCOLN
EDUCATIONAL
SERVICES CORPORATION
We are a leading and diversified for-profit provider of career-oriented post-secondary education. We offer recent high school graduates and working adults degree and diploma programs in five principal areas of study: automotive technology, health sciences (which includes programs for licensed practical nursing, medical administrative assistants, medical assistants, dental assistants, and pharmacy technicians), skilled trades, business and information technology and hospitality services. We have provided the workforce with skilled technicians since our inception in 1946. As of September 30, 2007, we operated 34 campuses in 17 states under five brands: Lincoln College of Technology, Lincoln Technical Institute, Nashville Auto-Diesel College, Southwestern College and Euphoria Institute of Beauty Arts and Sciences. We had a combined average enrollment of approximately 18,185 students at September 30, 2007.
Our
principal executive offices are located at 200 Executive Drive, Suite 340,
West
Orange, New Jersey 07052, and our telephone number at that address is (973)
736-9340. Our website is www.lincolneducationalservices.com. Information
contained in, or accessible through, our website is not incorporated by
reference into this prospectus.
RISK
FACTORS
Our
business is subject to significant risks. You should carefully
consider the risks and uncertainties described in this prospectus and the
documents incorporated by reference herein, including the risks and
uncertainties described under the caption “Risk Factors” included in Part I,
Item 1A of our Annual Report on Form 10-K for the fiscal year ended December
31,
2006 which is incorporated by reference in this
prospectus. Additional risk factors that you should carefully
consider may be included in a prospectus supplement relating to an offering
of
our common stock.
The
risks
and uncertainties described in this prospectus, any applicable prospectus
supplement and the documents incorporated by reference herein are not the only
ones facing us. Additional risks and uncertainties that we do not
presently know about or that we currently believe are not material may also
adversely affect our business. If any of the risks and uncertainties
described in this prospectus, any applicable prospectus supplement or the
documents incorporated by reference herein actually occur, our business,
financial condition and results of operations could be adversely affected in
a
material way. This could cause the trading price of our common stock
to decline, perhaps significantly, and you may lose part or all of your
investment.
USE
OF PROCEEDS
We
will
not receive any of the proceeds from the sale of shares of our common stock
by
the selling stockholders. We will pay all expenses of the
registration and sale of our common stock, other than the underwriting fees,
discounts and commissions, which will be borne by the selling
stockholders.
DIVIDEND
POLICY
We
have
never declared or paid dividends on our common stock and we do not anticipate
declaring or paying dividends on our common stock in the foreseeable
future. Instead, we currently anticipate that we will retain all of
our future earnings, if any, to fund the operation and expansion of our business
and to use as working capital and for other general corporate
purposes. Our board of directors will determine whether to pay cash
dividends in the future based on conditions then existing and the financial
responsibility standards prescribed by the U.S. Department of Education, as
well
as any economic and other conditions that our board of directors may deem
relevant. In addition, our ability to declare and pay dividends is
subject to certain restrictions under our existing credit
agreement.
SELLING
STOCKHOLDERS
We
are
registering shares of our common stock for resale by the selling stockholders
named below. Each of the selling stockholders may resell, from time
to time, all, some or none of the shares of our common stock covered by this
prospectus as provided under the section of this prospectus entitled “Plan of
Distribution” and in any applicable prospectus supplement. However,
we do not know when or in what amount the selling stockholders may offer their
shares for sale under this prospectus, if any. We will pay all
expenses incurred with respect to the registration and sale of the shares of
common stock owned by the selling stockholders, other than underwriting fees,
discounts and commissions, which will be borne by the selling
stockholders.
The
table
below, which was prepared based on information filed publicly or supplied to
us
by the selling stockholders, sets forth the information regarding the beneficial
ownership of outstanding shares of our common stock by the selling stockholders
and the shares that they may sell or otherwise dispose of from time to time
under this prospectus. Information concerning any of the selling
stockholders may change from time to time, and any changed information will
be
presented in a prospectus supplement as necessary. Please carefully
read the footnotes located below the table in conjunction with the information
presented in the table.
The
number of shares disclosed in the table below as “beneficially owned” are those
beneficially owned as determined under the rules of the SEC. Such
information is not necessarily indicative of ownership for any other
purpose. Under the rules of the SEC, a person is deemed to be a
“beneficial owner” of a security if that person has or shares “voting power,”
which includes the power to vote or to direct the voting of such security,
or
“investment power,” which includes the power to dispose of or to direct the
disposition of such security. In computing the number of shares
beneficially owned by a person and the percentage ownership of that person,
shares of common stock subject to options held by that person that are currently
exercisable or exercisable within 60 days of December 18, 2007 are deemed
outstanding. Such shares, however, are not deemed outstanding for the
purpose of computing the percentage of ownership of any other
person.
The
percentage of beneficial ownership is based on 25,886,448 shares of common
stock
outstanding on December 18, 2007. Unless otherwise indicated and
subject to community property laws where applicable, the selling stockholders
named in the following table have, to our knowledge, sole voting and investment
power with respect to the shares beneficially owned by them.
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Beneficial
Ownership
Prior
to
Offering
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Beneficial
Ownership
After
Offering
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Name
of
Selling
Stockholder
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Number
of
Shares
of
Common
Stock
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Percentage
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Maximum
Number
of
Shares
Offered
in
this
Offering(1)
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Number
of
Shares
of
Common
Stock(2)
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Percentage(2)
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Back
to School Acquisition L.L.C. (3)
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20,446,140
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78.8%
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18,165,500
(9)
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2,280,640
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8.8%
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||||||
| Hart Capital LLC (4) |
2,271,276
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8.8%
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2,271,276
(10)
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-
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-
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Steven
Hart Estate Reduction Trust FBO Nicholas DeQuinzio Hart, Marilyn
D. Hart
L. C. trustee (5)
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2,341 | * | 2,341 | - | - | ||||||
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Steven
Hart Estate Reduction Trust FBO Jordan Campbell Hart, Marilyn D.
Hart
trustee (5)
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2,341 |
*
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2,341 | - | - | ||||||
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Steven
Hart Estate Reduction Trust FBO Christopher Weber Hart, Marilyn
D. Hart
trustee (5)
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2,341 | * | 2,341 | - | - | ||||||
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Steven
Hart Estate Reduction Trust FBO Sarah Elizabeth Hart, Marilyn D.
Hart
trustee (5)
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2,341
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*
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2,341
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-
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-
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Management
Stockholders (6):
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David
F. Carney (7)
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544,609
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2.1%
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100,000
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444,609
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1.7%
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||||
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Scott
M. Shaw (8)
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391,904
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1.5%
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20,000
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371,904
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1.4%
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*
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Denotes less than 1%. |
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(1)
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Represents
the total number of shares of our common stock that the respective
selling
stockholders may offer under this
prospectus.
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(2)
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We
do not know when or in what amounts the selling stockholders may
offer for
sale the shares covered by this prospectus, if at all. The
selling stockholders may sell the shares covered by this prospectus
from
time to time and may also decide not to sell all, or any, of the
shares
covered by this prospectus. Because the selling stockholders
may offer all, some or none of the shares covered by this prospectus,
we
cannot estimate the number of shares of our common stock that the
selling
stockholders will actually own after any sale of shares pursuant
to this
prospectus. For purposes of this table, however, we have
assumed that the selling stockholders will have sold all of their
respective shares covered by this prospectus and that no additional
shares
of our common stock are acquired by the selling
stockholders.
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(3)
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Based
solely on the information provided to us by Stonington Capital
Appreciation 1994 Fund, L.P., Stonington Partners, L.P., Stonington
Partners, Inc., Stonington Partners, Inc. II (collectively, the
“Stonington Entities”), Back to School Acquisition, L.L.C. (“BSA”), Five
Mile River Capital Partners LLC (“FMRCP”), Hart Capital LLC, Steven W.
Hart, and the Steven W. Hart 2006 Grantor Retained Annuity Trust.
The
Stonington Entities control and have a 100% economic interest
in BSA. BSA
(i) owns 18,165,500 shares; (ii) has the power to direct the
voting and,
in certain circumstances the disposition, of 2,179,600 shares
through a
stockholders’ agreement with FMRCP (of which Hart Capital LLC is the
managing member), (iii) has the power to direct the voting and,
in certain
circumstances the disposition, of 50,142 shares through stockholders’
agreements with Steven W. Hart and various Hart family trusts,
and (iv)
will have the power to direct the voting, and in certain circumstances
the
disposition, of 50,898 shares upon the exercise of currently
exercisable
options held by Steven W. Hart and the Steven W. Hart 2006 Grantor
Retained Annuity Trust (which terminates by its own terms on
March 31,
2008) (the “Hart 2006 Trust”), through a stockholders’ agreement with
Steven W. Hart and the Steven W. Hart 2006 Grantor Retained Annuity
Trust.
Alexis P. Michas is the Managing Partner of Stonington Partners,
Inc. II
and James J. Burke, Jr. is a Partner of Stonington Partners,
Inc. II. Both
are members of our board of directors. We have not attempted
to
independently verify any of the foregoing information. Both BSA
and
Stonington Partners, Inc. II have their business address at 540
Madison
Avenue, 25th Floor, New York, New York 10022.
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(4)
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Based
solely on the information reported in a statement on Schedule
13G/A filed
with the SEC on February 6, 2007 by Steven W. Hart, FMRCP and
Hart Capital
LLC, and information provided to us by Steven W. Hart, FMRCP
and Hart
Capital LLC. The total number of shares consists of (i) 2,179,600
shares
held by FMRCP (of which Hart Capital LLC is the managing member),
(ii)
40,778 shares held by Steven W. Hart, and (iii) 42,068 shares
issuable
upon the exercise of currently exercisable options held by
Steven W. Hart,
and 8,830 shares issuable upon the exercise of currently exercisable
options held by the Hart 2006 Trust. Steven W. Hart, a former
member of
our board of directors, is a Managing Director of Hart Capital
LLC.
Marilyn D. Hart is Steven W. Hart’s wife. We have not attempted to
independently verify any of the foregoing information. Both
FMRCP and Hart
Capital LLC have their business address at 131 Rowayton Avenue,
Rowayton,
Connecticut 06853.
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(5)
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Based solely on information provided to us by Steven W. Hart, FMRCP and Hart Capital LLC. |
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(6)
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Unless
otherwise noted, the business address for each of the management
stockholders is 200 Executive Drive, Suite 340, West Orange, New
Jersey
07052.
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(7)
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Includes
215,288 shares of common stock currently held of record and options
to
purchase 329,321 shares of common
stock.
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(8)
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Includes
115,626 shares of common stock currently held of record, of which
50,000
shares are outstanding shares of restricted stock granted on October
30,
2007 and held in escrow, which will vest ratably over the five
years
subsequent to the date of grant. Also includes options to
purchase 276,278 shares of common
stock.
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(9)
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Represents
shares owned by BSA.
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(10)
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Represents
shares described in footnote
(4).
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DESCRIPTION
OF
CAPITAL STOCK
General
The
following is a description of the material terms of our capital stock included
in our amended and restated certificate of incorporation and amended and
restated bylaws and is only a summary. You should refer to our
amended and restated certificate of incorporation and amended and restated
bylaws, which are incorporated by reference in this prospectus, for more
information.
We
are
currently authorized to issue 100,000,000 shares of common stock, no par value,
and 10,000,000 shares of preferred stock.
Common
Stock
As
of
December 18, 2007 there were 25,886,448 shares of common stock outstanding,
which were held of record by 21 stockholders.
Voting
rights. The
holders of our
common stock will be entitled to one vote per share for each share held of
record on any matter to be voted upon by stockholders. Our amended
and restated certificate of incorporation does not provide for cumulative voting
in connection with the election of directors and, accordingly, holders of more
than 50% of the shares voting will be able to elect all of the directors
standing for election.
Dividend
rights. All shares of our common
stock are entitled to share equally in any dividends our board of directors
may
declare from legally available sources. Our existing credit agreement
currently imposes restrictions on our ability to declare dividends with respect
to our common stock.
Liquidation
rights. Upon liquidation or
dissolution of our company, whether voluntary or involuntary, all shares of
our
common stock will be entitled to share equally in the assets available for
distribution to stockholders after payment of all of our prior obligations,
including obligations on our preferred stock.
Other
matters. The holders of our common
stock have no preemptive or conversion rights and our common stock is not
subject to further calls or assessments by us. There are no
redemption or sinking fund provisions applicable to the common
stock. The rights, preferences and privileges of holders of common
stock are subject to the rights of holders of shares of any series or preferred
stock that may be issued in the future. All outstanding shares of our
common stock, including the common stock offered in this offering, are fully
paid and non-assessable.
Preferred
Stock
Our
amended and restated certificate of incorporation provides for the authorization
of 10,000,000 shares of preferred stock. We currently do not have any
preferred stock issued or outstanding and no shares of our preferred stock
will
be outstanding immediately following completion of this offering. The
shares of preferred stock may be issued from time to time at the discretion
of
the board of directors without stockholder approval. The board of
directors will be authorized to issue these shares in different classes and
series and, with respect to each class or series, to determine the dividend
rate, the redemption provisions, conversion provisions, liquidation preference
and other rights and privileges not in conflict with our amended and restated
certificate of incorporation. The issuance of preferred stock could
adversely affect the voting power of holders of common stock and the likelihood
that such holders will receive dividend payments and payments upon
liquidation. In addition, the issuance of preferred stock could have
the effect of delaying, deferring or preventing a change in control of
us. The issuance of our preferred stock provides needed
flexibility in connection with possible acquisitions and other corporate
purposes; however, the issuance could also make it more difficult for a third
party to acquire a majority of our outstanding voting stock or discourage an
attempt to gain control of us. In addition, the board of directors,
without stockholder approval, will be able to issue shares of preferred stock
with voting and conversion rights that could adversely affect the voting power
and other rights of the holders of common stock. The rules of The
Nasdaq Global Market, which will apply so long as our common stock is listed
on
The Nasdaq Global Market, require stockholder approval of certain issuances
equal to or exceeding 20% of the then outstanding voting power of the then
outstanding number of shares of common stock. These additional shares
may be used for a variety of corporate purposes, including future public
offerings, to raise additional capital or to facilitate
acquisitions.
Directors’
Exculpation
and
Indemnification
Our
amended and restated certificate of incorporation provides that none of our
directors shall be liable to us or our stockholders for monetary damages for
any
breach of fiduciary duty as a director, except to the extent otherwise required
by the New Jersey Business Corporation Act, or the NJBCA. The effect
of this provision is to eliminate our rights, and our stockholders’ rights, to
recover monetary damages against a director for breach of a fiduciary duty
of
care as a director, except to the extent otherwise required by the
NJBCA. This provision does not limit or eliminate our right, or the
right of any stockholder, to seek non-monetary relief, such as an injunction
or
rescission in the event of a breach of a director's duty of care. In
addition, our amended and restated certificate of incorporation provides that,
if the NJBCA is amended to authorize the further elimination or limitation
of
the liability of a director, then the liability of the directors shall be
eliminated or limited to the fullest extent permitted by the NJBCA, as so
amended. These provisions will not alter the liability of directors
under federal or state securities laws.
Anti-Takeover
Effects of the New
Jersey Shareholders Protection Act
We
are
subject to the provisions of Section 14A-10A of the New Jersey Business
Corporation Act, which is known as the “New Jersey Shareholders Protection
Act.” Under the New Jersey Shareholders Protection Act, we are
prohibited from engaging in any “business combination” with any “interested
shareholder” for a period of five years following the time at which that
shareholder becomes an “interested shareholder” unless the business combination
is approved by our board of directors before that shareholder became an
“interested shareholder.” After this five-year period has expired,
any business combination with an “interested shareholder” must be approved by
holders of 662/3%
of the voting shares not held
by the “interested shareholder” or meet certain prescribed value
requirements. Covered business combinations include certain mergers,
dispositions of assets or shares and recapitalizations.
An
“interested shareholder” is (i) any person that directly or indirectly
beneficially owns 10% or more of the voting power of our outstanding voting
stock; or (ii) any of our affiliates or associates (as those terms are defined
in the New Jersey Shareholders Protection Act) that directly or indirectly
beneficially owned 10% or more of the voting power of our then outstanding
stock
at any time within a five-year period immediately prior to the date in
question.
Certain
Provisions of Our Amended
Certificate of Incorporation and Bylaws
Board
of
Directors. Our amended and restated
certificate of incorporation and amended and restated bylaws provide that our
board of directors shall consist of at least three directors but not more than
eleven directors, as may be determined by the board of directors from time
to
time. Currently, our board of directors consists of eight directors,
five of whom are independent directors. Any vacancy on our board of
directors, including a vacancy resulting from an enlargement of our board of
directors, may be filled only by the affirmative vote of a majority of the
directors then in office, though less than a quorum. Any such
director so elected shall hold office for the remainder of the full term of
the
director for which the vacancy was created or occurred and until his or her
successor shall have been elected and qualified. The limitation on
filling vacancies could make it more difficult for a third party to acquire,
or
discourage a third party from attempting to acquire, control of our
company.
Board
meetings. Our amended and restated
bylaws provide that special meetings of the board of directors may be called
by
the chairman of our board of directors, our chief executive officer or by any
two directors in office.
Stockholder
meetings. Our amended and restated
certificate of incorporation provides that any action required or permitted
to
be taken by our stockholders at an annual meeting or special meeting of
stockholders may only be taken if it is properly brought before such meeting
and
may not be taken by non-unanimous written action in lieu of a
meeting. Our bylaws further provide that special meetings of the
stockholders may only be called by our president, by a committee that is duly
designated by the board of directors, by resolution adopted by the affirmative
vote of the majority of the board of directors or pursuant to an order of the
New Jersey Superior Court in accordance with NJBCA.
Requirements
for advance
notification of stockholder nominations and
proposals. Our amended and restated
bylaws establish advance notice procedures with respect to stockholder proposals
and the nomination of candidates for election as directors, other than
nominations made by or at the direction of our board of directors or a committee
of the board of directors. In order for any matter to be considered
"properly brought" before a meeting, a stockholder must comply with requirements
regarding advance notice and provide certain information to us. These
provisions could have the effect of delaying until the next stockholders meeting
stockholder actions that are favored by the holders of a majority of our
outstanding voting securities. These provisions could also discourage
a third party from making a tender offer for our common stock, because even
if
it acquired a majority of our outstanding voting securities, it would be able
to
take action as a stockholder (such as electing new directors or approving a
merger) only at a duly called stockholders meeting and not by non-unanimous
written consent.
Stockholder
action by written
consent. Our amended and restated
certificate of incorporation and amended and restated bylaws prohibit
stockholder action by non-unanimous written consent and require all such actions
to be taken at a meeting of stockholders of our common stock.
Cumulative
voting. Our amended and restated
certificate of incorporation provides that our stockholders shall have no
cumulative voting rights.
Amendment
of certificate of
incorporation and bylaws. The
amendment of the provisions described above in our amended and restated
certificate of incorporation generally will require the affirmative vote of
a
majority of our directors, as well as the affirmative vote of the holders of
at
least 662/3%
of our then-outstanding
voting stock. Our amended and restated bylaws may be amended (i) by
the affirmative vote of the majority of our board of directors or (ii) by the
affirmative vote of holders of a majority of our then outstanding voting
stock.
Nasdaq
Global Market
Trading
Shares
of
our common stock are listed for trading on the Nasdaq Global Market under the
symbol “LINC.”
Transfer
Agent and
Registrar
Continental
Stock Transfer & Trust Company is the transfer agent and registrar for our
common stock.
PLAN
OF DISTRIBUTION
The
selling stockholders, and their pledgees, donees, transferees or other
successors in interest, may from time to time offer and sell, separately or
together, some or all of the shares of common stock covered by this
prospectus. Registration of the shares of common stock covered by
this prospectus does not mean, however, that those shares of common stock will
be offered or sold.
The
shares of common stock covered by this prospectus may be sold from time to
time,
at market prices prevailing at the time of sale, at prices related to market
prices, at a fixed price or prices subject to change or at negotiated prices,
by
a variety of methods including, but not limited to, the following:
|
|
·
|
through
one or more
underwriters on a firm commitment or best efforts
basis;
|
|
|
·
|
on
the Nasdaq Global Market (including through at the market
offerings);
|
|
|
·
|
in
the
over-the-counter market;
|
|
|
·
|
directly
to one or more purchasers;
|
|
|
·
|
through
agents;
|
|
|
·
|
through
broker-dealers, who may act as agents or principals, including a
block
trade in which a broker or dealer so engaged will attempt to sell
the
common stock as agent but may position and resell a portion of the
block
as principal to facilitate the
transaction;
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|
|
·
|
through
put or call option transactions relating to our common
stock;
|
|
|
·
|
in
privately negotiated transactions;
and
|
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|
·
|
in
any combination of these methods of
sale.
|
The
applicable prospectus supplement will set forth:
|
|
·
|
the
specific terms of the offering of our common stock, including the
name or
names of the selling stockholders and any underwriters, dealers or
agents
participating in the offering;
|
|
|
·
|
the
purchase price of
the common stock and the proceeds to the selling stockholders from
the
sale;
|
|
|
·
|
any
underwriting discounts and commissions or agency fees and other items
constituting underwriters’ or agents’
compensation;
|
|
|
·
|
the
initial offering price to the public and any discounts or concessions
allowed or reallowed or paid to dealers;
and
|
|
|
·
|
the
name of any securities exchange on which the common stock may be
listed.
|
Any
public offering price, discounts or concessions allowed or reallowed or paid
to
dealers may be changed from time to time.
The
selling stockholders may from time to time deliver all or a portion of the
shares of our common stock offered hereby to cover a short sale or sales or
upon
the exercise, settlement or closing of a call equivalent position or a put
equivalent position.
Offers
to
purchase our securities may be solicited by agents designated by the selling
stockholders from time to time. Broker-dealers or agents may receive
compensation in the form of commissions, discounts or concessions from the
selling stockholders. Broker-dealers or agents may also receive
compensation from the purchasers of the common stock for whom they sell as
principals. Each particular broker-dealer will receive compensation
in amounts negotiated in connection with the sale, which might be in excess
of
customary commissions. Broker-dealers or agents and any other
participating broker-dealers participating in the distribution of our common
stock may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of our common stock
may be deemed to be underwriting discounts and commissions.
If
the
selling stockholders use underwriters for an offering of the common stock,
the
underwriters may acquire the common stock for their own accounts. The
underwriters may resell the common stock from time to time in one or more
transactions at a fixed price or prices, which may be changed, at varying prices
determined by the underwriters at the time of sale, or at negotiated
prices. The selling stockholders also may, from time to time,
authorize underwriters acting as their agents to offer and sell the common
stock
upon the terms and conditions as will be set forth in the applicable prospectus
supplement. In connection with the sale of the common stock,
underwriters may be deemed to have received compensation from the selling
stockholders in the form of underwriting discounts or commissions and also
may
receive commissions from purchasers of the common stock. Underwriters
may sell the common stock to or through dealers, who may receive compensation
in
the form of discounts, concessions from the underwriters and/or commissions
from
the purchasers of the common stock.
Under
agreements into which we or the selling stockholders may enter, underwriters,
dealers and agents who participate in the distribution of the common stock
may
be entitled to indemnification, or contribution to payments they may be required
to make, by us or the selling stockholders against some liabilities, including
liabilities under the Securities Act. The terms and conditions of
this indemnification or contribution will be described in the applicable
prospectus supplement.
Any
underwriting compensation paid by the selling stockholders to underwriters
or
agents in connection with any offering of the common stock and any discounts,
concessions or commissions allowed by underwriters to participating dealers
will
be set forth in the applicable prospectus supplement. In compliance
with guidelines of the Financial Industry Regulatory Authority, or FINRA, the
maximum commission or discount to be received by any FINRA member or independent
broker-dealer may not exceed 8% of the aggregate amount of our common stock
offered by this prospectus; however, it is anticipated that the maximum
commission or discount to be received in any particular offering of securities
will be significantly less than this amount.
The
selling stockholders may grant to the underwriters options to purchase
additional common stock to cover over-allotments, if any, at the public offering
price with additional underwriting discounts or commissions, as may be set
forth
in the applicable prospectus supplement.
Underwriters
and others participating in any offering of the common stock may engage in
transactions that stabilize, maintain or otherwise affect the market price
of
our common stock. We will describe any such activities in the
prospectus supplement.
Any
underwriters, dealers or agents involved in any distribution or sale of our
common stock may be customers of, engage in transactions with or perform
services for us or the selling stockholders or any of our or their affiliates
in
the ordinary course of business.
We
will
bear all costs, expenses and fees in connection with the registration and sale
of the common stock, other than the underwriting commissions and discounts,
if
any, attributable to the sales of the common stock by the selling
stockholders.
LEGAL
MATTERS
Shearman
& Sterling LLP, New York, New York, will pass upon certain legal matters for
us. The validity of the shares of common stock offered by this
prospectus will be passed upon for us McCarter & English, LLP, Newark, New
Jersey.
EXPERTS
The
consolidated financial statements, management's report on the effectiveness
of
internal control over financial reporting and the related financial statement
schedule incorporated in this prospectus by reference from the Company's
Current
Report on Form 8-K dated December 13, 2007 have been audited by Deloitte
& Touche LLP, an independent registered public accounting firm, as stated in
their reports, which are incorporated by reference in the registration
statement (which reports (1) express an unqualified opinion on the financial
statements and financial statement schedule and include an explanatory paragraph
relating to the adoption of the provisions of FASB Statement No. 158, “Employers’ Accounting for Defined
Benefit Pension and Other Postretirement Plans,” (2) express an
unqualified opinion on management's assessment regarding the effectiveness
of
internal control over financial reporting, and (3) express an unqualified
opinion on the effectiveness of internal control over financial reporting),
and
have been so incorporated by reference in reliance upon the reports of such
firm
given upon their authority as experts in accounting and
auditing.
WHERE
YOU
CAN FIND
ADDITIONAL INFORMATION AND
INCORPORATION
OF CERTAIN INFORMATION
BY REFERENCE
We
file
annual, quarterly and current reports, proxy statements and other information
with the SEC. The SEC allows us to incorporate by reference the
information we file with them, which means that we can disclose important
business and financial information to you that is not included in or delivered
with this prospectus by referring you to publicly filed documents that contain
the omitted information.
You
can
read and copy any materials on file with the SEC at the SEC’s Public Reference
Room at 100 F Street, N.E., Washington, D.C. 20549. You can obtain
information about the operation of the Public Reference Room by calling the
SEC
at 1-800-SEC-0330. The SEC also maintains a website that contains
information we file electronically with the SEC, which you can access over
the
internet at www.sec.gov.
The
information incorporated by reference is an important part of this prospectus,
and the information we later file with the SEC will automatically update and
supersede earlier information. We incorporate by reference the
following documents filed with the SEC by us and any future filings we make
with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the
date of this prospectus and prior to the termination of the offering of our
common stock covered by this prospectus (except for information furnished to
the
SEC that is not deemed to be “filed” for purposes of the Exchange
Act):
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|
·
|
our
Annual Report on Form 10-K for the fiscal year ended December 31,
2006;
|
|
|
·
|
our
Quarterly Reports on Form 10-Q for the fiscal quarters ended March
31,
2007, June 30, 2007 and September 30,
2007;
|
|
|
·
|
our
Current Reports on Form 8-K filed January 30, 2007, August 2, 2007,
October 18, 2007, December 4, 2007, and December 13, 2007 and our
Current
Report on Form 8-K/A filed November 9,
2007;
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·
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our
Proxy Statement filed March 23, 2007;
and
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|
|
·
|
the
description of our common stock included in Item 1 of our Registration
Statement on Form 8-A, filed with the SEC on June 22,
2005.
|
You
may
also request a copy of the information we incorporate by reference in this
prospectus at no cost by writing or telephoning us at Lincoln Educational
Services Corporation, 200 Executive Drive, Suite 340, West Orange, New Jersey
07052, Attention: Investor Relations, (973) 736-9340.
Information
is also available on our website at www.lincolneducationalservices.com. Information
contained in, or accessible through, our website is not incorporated by
reference into this prospectus.
PART
II
INFORMATION
NOT REQUIRED IN
PROSPECTUS
Item
14. Other Expenses of
Issuance and Distribution.
The
expenses of the issuance and distribution of the securities being registered
hereby, other than selling discounts and commissions, are estimated as
follows:
|
Securities
and Exchange Commission Registration Fee
|
$ |
9,275
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||
|
Legal
Fees and
Expenses
|
250,000
|
|||
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Financial
Industry Regulatory Authority Fees
|
29,451
|
|||
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Printing
and Engraving
Expenses
|
75,000
|
|||
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Accounting
Fees and
Expenses
|
125,000
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|||
|
Transfer
Agent and Registrar Fees and Expenses
|
5,000
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|||
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Miscellaneous
|
350,000
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|||
|
Total
|
$ |
843,726
|
||
All
of
such expenses will be paid by Lincoln Educational Services
Corporation.
Item
15. Indemnification
of Directors and Officers.
The
New
Jersey Business Corporation Act (the “NJBCA”) provides that a New
Jersey corporation has the power to indemnify a director or officer against
his
or her expenses and liabilities in connection with any proceeding involving
the
director or officer by reason of his or her being or having been such a director
or officer, other than a proceeding by or in the right of the corporation,
if
such a director or officer acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation; and with respect to any criminal proceeding, such director or
officer had no reasonable cause to believe his or her conduct was
unlawful.
The
indemnification and advancement of expenses shall not exclude any other rights,
including the right to be indemnified against liabilities and expenses incurred
in proceedings by or in the right of the corporation, to which a director or
officer may be entitled under a certificate of incorporation, bylaw, agreement,
vote of stockholders, or otherwise; provided that no
indemnification shall be made to or on behalf of a director or officer if a
judgment or other final adjudication adverse to the director or officer
establishes that his or her acts or omissions (a) were in breach of his or
her
duty of loyalty to the corporation or its stockholders, (b) were not in good
faith or involved a knowing violation of law or (c) resulted in receipt by
the
director or officer of an improper personal benefit.
Our
amended and restated certificate of incorporation provides that none of our
directors shall be liable to us or our stockholders for monetary damages for
any
breach of fiduciary duty as a director, except to the extent otherwise required
by the NJBCA. The effect of this provision is to eliminate our
rights, and our stockholders’ rights, to recover monetary damages against a
director for breach of a fiduciary duty of care as a director, except to the
extent otherwise required by the NJBCA. This provision does not limit
or eliminate our right, or the right of any stockholder, to seek non-monetary
relief, such as an injunction or rescission in the event of a breach of a
director’s duty of care. In addition, our amended and restated
certificate of incorporation provides that, if the NJBCA is amended to authorize
the further elimination or limitation of the liability of a director, then
the
liability of the directors shall be eliminated or limited to the fullest extent
permitted by the NJBCA, as so amended. These provisions will not
alter the liability of directors under federal or state securities
laws.
Item
16. Exhibits.
The
index
to exhibits appears below on the page immediately following the signature pages
of this registration statement.
Item
17. Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) to
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
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|
(i)
|
to
include any prospectus required by Section 10(a)(3) of the Securities
Act
of 1933;
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|
|
(ii)
|
to
reflect in the prospectus any facts or events arising after the effective
date of the 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 the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value
of
securities offered would not exceed that which was registered) and
any
deviation from the low or high end of the estimated maximum offering
range
may be reflected in the form of prospectus filed with the SEC pursuant
to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
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(iii)
|
to
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in this registration
statement;
|
provided,
however, that
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the
registration statement is on Form S-3 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the SEC by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part
of
the registration statement.
(2)
that, for the purpose of determining any liability under the Securities Act
of
1933, 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.
(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.
(4)
that, for purposes of determining liability under the Securities Act of 1933
to
any purchaser:
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|
(i)
|
each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be
deemed to be part of the registration statement as of the date the
filed
prospectus was deemed part of and included in the registration statement;
and
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|
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(ii)
|
each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5)
or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii)
or (x)
for the purpose of providing the information required by Section
10(a) of
the Securities Act of 1933 shall be deemed to be part of and included
in
the registration statement as of the earlier of the date such form
of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in prospectus.
As
provided in Rule 430B, for liability purposes of the issuer and any
person
that is at that date an underwriter, such date shall be deemed to
be a new
effective date of the registration statement relating to the securities
in
the registration statement to which the prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial
bona fide offering thereof. Provided, however, that
no statement made in a registration statement or prospectus that
is part
of the registration statement or made in a document incorporated
or deemed
incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser
with a
time of contract of sale prior to such effective date, supersede
or modify
any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such effective
date.
|
(b) The
undersigned registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933
may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant 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, the registrant will, unless
in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will
be governed by the final adjudication of such issue.
(d)
The undersigned registrant hereby undertakes that:
(1) For
the purpose of determining any liability under the Securities Act of 1933,
the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
(2) For
the purpose of determining any liability under the Securities Act of 1933,
each
post-effective amendment that contains a form of prospectus 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-3 and has duly caused this registration statement to be
signed
on its behalf by the undersigned, thereunto duly authorized, in the City
of West
Orange, State of New Jersey on the 12th of February, 2008.
| LINCOLN EDUCATIONAL SERVICES CORPORATION | ||
|
By:
|
/s/
Cesar Ribeiro
|
|
|
Cesar
Ribeiro
|
||
|
Chief
Financial Officer
(Principal
Accounting and Financial Officer)
|
||
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed below by the following persons in the capacities
indicated, on February 12, 2008.
|
Signature
|
Title
|
|
|
*
|
Chief
Executive Officer and Chairman of the Board of
Directors
|
|
|
David
F. Carney
|
(Principal
Executive Officer)
|
|
|
/s/
Cesar Ribeiro
|
Chief
Financial Officer
|
|
|
Cesar
Ribeiro
|
(Principal
Accounting and Financial Officer)
|
|
|
*
|
Director
|
|
|
Alexis
P. Michas
|
||
|
*
|
Director
|
|
|
James
J. Burke, Jr.
|
||
|
*
|
Director
|
|
|
Jerry
G. Rubenstein
|
|
*
|
Director
|
|
|
Paul
E. Glaske
|
||
|
*
|
Director
|
|
|
Peter
S. Burgess
|
||
|
*
|
Director
|
|
|
J.
Barry Morrow
|
||
|
*
|
Director
|
|
|
Celia
Currin
|
|
*
|
The
undersigned, by signing his name hereto, signs and executes this
registration statement pursuant to the Powers of Attorney executed
by the
above-named officers and directors and filed with the Securities
and
Exchange Commission.
|
| By: | /s/ Cesar Ribeiro | |
| Name: Cesar Ribeiro | ||
| Title: Attorney-in-Fact | ||
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
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1.1*
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Underwriting
Agreement.
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3.1
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Amended
and Restated Certificate of Incorporation of the Company
(1).
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3.2
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Amended
and Restated By-laws of the Company (2).
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4.1
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Stockholders’
Agreement, dated as of September 15, 1999, among Lincoln Technical
Institute, Inc., Back to School Acquisition, L.L.C. and Five Mile
River
Capital Partners LLC (1).
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4.2
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Letter
agreement, dated August 9, 2000, by Back to School Acquisition,
L.L.C.,
amending the Stockholders’ Agreement (1).
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4.3
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Letter
agreement, dated August 9, 2000, by Lincoln Technical Institute,
Inc.,
amending the Stockholders’ Agreement (1).
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4.4
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Management
Stockholders Agreement, dated as of January 1, 2002, by and among
Lincoln
Technical Institute, Inc., Back to School Acquisition, L.L.C. and
the
Stockholders and other holders of options under the Management
Stock
Option Plan listed therein (1).
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4.5***
|
Assumption
Agreement and First Amendment to Management Stockholders Agreement,
dated
as of December 20, 2007, by and among Lincoln Educational Services
Corporation, Lincoln Technical Institute, Inc., Back to School
Acquisition, L.L.C. and the Management Investors parties
therein.
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4.6
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Registration
Rights Agreement between the Company and Back to School Acquisition,
L.L.C. (2).
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4.7
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Specimen
Stock Certificate evidencing shares of common stock
(1).
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Opinion
of McCarter & English, LLP.
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||
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10.1
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Credit
Agreement, dated as of February 15, 2005, among the Company, the
Guarantors from time to time parties thereto, the Lenders from
time to
time parties thereto and Harris Trust and Savings Bank, as Administrative
Agent (1).
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10.2
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Amended
and Restated Employment Agreement, dated as of February 1, 2007,
between
the Company and David F. Carney (3).
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10.3
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Separation
and Release Agreement, dated October 15, 2007, between the Company
and
Lawrence E. Brown (4).
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10.4
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Amended
and Restated Employment Agreement, dated as of February 1, 2007,
between
the Company and Scott M. Shaw (3).
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10.5
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Amended
and Restated Employment Agreement, dated as of February 1, 2007,
between
the Company and Cesar Ribeiro
(3).
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10.6
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Amended
and Restated Employment Agreement, dated as of February 1, 2007,
between
the Company and Shaun E. McAlmont (3).
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10.7
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Lincoln
Educational Services Corporation 2005 Long Term Incentive Plan
(1).
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10.8
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Lincoln
Educational Services Corporation 2005 Non-Employee Directors Restricted
Stock Plan (1).
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10.9
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Lincoln
Educational Services Corporation 2005 Deferred Compensation Plan
(1).
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10.10
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Lincoln
Technical Institute Management Stock Option Plan, effective January
1,
2002 (1).
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10.11
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Form
of Stock Option Agreement, dated January 1, 2002, between Lincoln
Technical Institute, Inc. and certain participants (1).
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10.12
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Management
Stock Subscription Agreement, dated January 1, 2002, among Lincoln
Technical Institute, Inc. and certain management investors
(1).
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10.13
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Stockholder’s
Agreement among Lincoln Educational Services Corporation, Back
to School
Acquisition L.L.C., Steven W. Hart and Steven W. Hart 2003 Grantor
Retained Annuity Trust (2).
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10.14
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Stock
Purchase Agreement, dated as of March 30, 2006, among Lincoln Technical
Institute, Inc., and Richard I. Gouse, Andrew T. Gouse, individually
and
as Trustee of the Carolyn Beth Gouse Irrevocable Trust, Seth A.
Kurn and
Steven L. Meltzer (5).
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21.1
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Subsidiaries
of the Company (3).
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Consent
of Deloitte & Touche LLP.
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23.2
**
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Consent
of McCarter & English, LLP (included in the opinion filed as
Exhibit 5.1).
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24.1
***
|
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Powers
of Attorney (included on signature
page).
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______________________________
|
(1)
|
Incorporated
by reference to the Company’s Registration Statement on Form S-1
(Registration No. 333-123664).
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(2)
|
Incorporated
by reference to the Company’s Form 8-K dated June 28,
2005.
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(3)
|
Incorporated
by reference to the Company’s Form 10-K for the year ended December 31,
2006.
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(4)
|
Incorporated
by reference to the Company’s Form 8-K dated October 15,
2007.
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(5)
|
Incorporated
by reference to the Company’s Form 10-Q for the quarterly period ended
March 31, 2006.
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*
|
To
be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
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**
|
Filed
herewith.
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***
|
Previously
filed.
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II-7
Exhibit
5.1
|
McCarter
&
English,
LLP
Four
Gateway Center
100
Mulberry Street
Newark,
NJ 07102
T.973.622.4444
F.973.624.7070
www.mccarter.com
|
 |
Lincoln
Educational Services Corporation
200
Executive Drive, Suite 340
West
Orange, NJ 07052
Re: Registration
Statement on Form S-3
Registration
No. 333 -
148406
Ladies
and Gentlemen:
We
serve as special New Jersey counsel
to Lincoln Educational Services Corporation, a New Jersey corporation
(the
“Company”). This opinion is furnished to you in connection with the
filing by the Company with
the
Securities and Exchange Commission (the “Commission”) of a registration
statement (No. 333 - 148406)
on Form S-3 (as amended by
Amendment No.1 filed by
the Company with the Commission on February 12, 2008, the
“Registration Statement”), and
the
prospectus contained in the Registration Statement (the “Prospectus”),
relating
to the offering
and sale from time to time by the selling stockholders
named in
the Registration Statement (the “Selling Stockholders”), pursuant
to Rule 415
of the General Rules and Regulations of the Commission promulgated
under the
Securities Act of 1933, as amended (the “Securities Act”), of up
to 20,566,140 shares of the Company’s common stock, no par value (the “Shares”),
in the manner set forth in the Registration Statement.
(a)
The Registration Statement and the Prospectus;
(b)
The amended and restated certificate of incorporation and by-laws of
the
Company, as amended through the date hereof;
(c)
The Agreement and Plan of Merger of Lincoln Acquisition Corporation
with and
into Lincoln Technical Institute, Inc. dated February 10, 2003 (the
“Agreement
and Plan of Merger”), and the accompanying Certificate of Merger of Lincoln
Acquisition Corporation with and into Lincoln Technical Institute,
Inc., filed
with the New Jersey Department of the Treasury on February 11, 2003;
and
Lincoln
Educational Services Corporation
February
12, 2008
Page
2
(d) Originals
or copies of such other corporate records of the Company, certificates
of public
officials and officers of the Company and agreements and other documents
as we
have deemed necessary as a basis for the opinions expressed below.
In
our review of the Documents, we have
assumed:
(a)
The genuineness of all signatures;
(b)
The authenticity of the originals of the documents submitted to us;
(c)
The conformity to authentic originals of any documents submitted to us
as
copies; and
(d)
As to matters of fact, the truthfulness of the representations made in
the
Agreement and Plan of Merger and the other Documents and in certificates
of
public officials and officers of the Company.
We
have not independently established
the validity of the foregoing assumptions.
Members
of our firm are admitted to
practice law in the State of New Jersey, and we do not express any opinion
as to
the laws of any other jurisdiction.
Subject
to the foregoing assumptions
and the limitations and qualifications set forth below, it is our opinion
that
as of the date hereof the Shares covered by the Registration Statement
that are
to be offered and sold from time to time by the Selling Stockholders
as
described in the Registration Statement have been duly authorized by
all
necessary corporate action of the Company and, when sold and delivered
in the
manner described in the Registration Statement, will be legally issued,
fully
paid, and non-assessable.
This
opinion letter is rendered to you
in connection with the transactions contemplated by the Registration
Statement. This opinion letter may not be relied upon by you for any
other purpose without our prior written consent. This opinion letter
speaks only as of the date hereof. We expressly disclaim any
responsibility to advise you of any development or circumstance of any
kind,
including any change of law or fact, that may occur after the date of
this
opinion letter that might affect the opinions expressed herein.
We
hereby consent to the filing of this
opinion with the Commission as an exhibit to the Registration
Statement. We also consent to the reference to our firm under the
heading “Legal Matters” in the Registration Statement. In giving this
consent, we do not hereby admit that we are included in the category
of persons
whose consent is required under Section 7 of the Securities Act or the
rules and
regulations of the Commission.
|
Very
truly yours,
|
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|
/s/
McCarter & English, LLP
|
|
|
McCarter
& English, LLP
|
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Amedment No. 1 to Registration
Statement No. 333-148406 on Form S-3 of our report dated March 14, 2007
(December 12, 2007 as to the effects of the discontinued operations described
in
Note 19), relating to the consolidated financial statements and financial
statement schedule II of Lincoln Educational Services Corporation (which
report
expressed an unqualified opinion and includes an explanatory paragraph relating
to the adoption of the provisions of FASB Statement No. 158, “Employers’ Accounting for Defined
Benefit Pension and Other Postretirement Plans”) and our report dated
March 14, 2007 relating to management’s report on the effectiveness of internal
control over financial reporting appearing in the Current Report on Form
8-K of
Lincoln Educational Services Corporation dated December 13, 2007, and to
the reference to us under the heading “Experts” in the Prospectus, which is part
of such Registration Statement.
/s/
Deloitte & Touche LLP
Parsippany,
New Jersey
February
11, 2008