As
filed with the Securities and Exchange Commission on April 30, 2009
Registration
No. 333-_______
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
LINCOLN
EDUCATIONAL SERVICES CORPORATION
(Exact
name of Registrant as specified in its charter)
|
New
Jersey
(State
or other jurisdiction of
incorporation or organization) |
57-1150621
(I.R.S.
Employer
Identification
Number)
|
|
|
200
Executive Drive, Suite 340
West
Orange, New Jersey 07052
|
(Address
of Registrant's principal executive offices)
2005
Non-Employee Directors Restricted Stock Plan
(Full
title of the plan)
_______________
David
F. Carney
Executive
Chairman
Lincoln
Educational Services Corporation
200
Executive Drive, Suite 340
West
Orange, New Jersey 07052
(973)
736 - 9340
(Name,
address and telephone number of agent for service)
_______________
Copies
to:
Rohan
S. Weerasinghe, Esq.
Shearman
& Sterling LLP
599
Lexington Avenue, New York, NY 10022
(212)
848-7179
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
|
Large
accelerated filer
|
¨
|
Accelerated
filer
|
x
|
||
|
Non-accelerated
filer
|
¨
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Smaller
reporting company
|
¨
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CALCULATION
OF REGISTRATION FEE
|
Title
of Securities to be
Registered
(1)
|
Amount
to be
Registered
(1)
|
Proposed
Maximum
Offering Price per Share (2) |
Proposed
Maximum
Aggregate Offering Price |
Amount
of
Registration
Fee
|
|
Ordinary
Shares of Common Stock of Lincoln
Educational Services Corporation |
200,000
|
$14.96
|
$2,992,000
|
$166.95
|
|
|
(1)
|
In
addition, this Registration Statement shall also cover any additional
shares of Common Stock which become issuable under the plans being
registered pursuant to this Registration Statement by reason of any stock
dividend, stock split, recapitalization or any other similar transaction
effected without the receipt of consideration which results in an increase
in the number of the Registrant’s outstanding shares of Common
Stock.
|
|
|
(2)
|
Estimated
in accordance with Rules 457(c) and 457(h) under the Securities Act of
1933, as amended (the “Securities
Act”) solely for the purpose of determining the registration
fee. Estimated based on the average of the bid and asked prices
of the Common Stock, no par value per share, reported on the Nasdaq
National Market on April 24, 2009.
|
STATEMENT
PURSUANT TO GENERAL INSTRUCTION E
TO
FORM S-8
The
contents of the Registration Statement on Form S-8 (File No. 333-132749) that
Lincoln Educational Services Corporation (the “Company”) filed with
the Securities and Exchange Commission (the “Commission”) on March
27, 2006 are hereby incorporated by reference.
Explanatory
Statement
The
200,000 shares covered by this Registration Statement may be offered and sold to
non-employee directors of the Company and its subsidiaries under the Company’s
2005 Non-Employee Directors Restricted Stock Plan (the “Plan”).
The Plan
was initially adopted in 2005 and, subject to certain adjustments, authorized a
maximum of 100,000 shares of the Company’s common stock that may be issued for
all purposes under the Plan. On February 27, 2009, the Company’s
board of directors approved, subject to shareholders approval, amending the Plan
to increase the aggregate number of shares of common stock available under the
Plan to a total of 300,000 shares. On April 30, 2009, the
shareholders approved this amendment.
Information Not in Earlier
Registration Statement
|
Item:
5
|
Interests
of Named Experts and Counsel
|
Kenneth
M. Swisstack, Senior Counsel and Corporate Secretary of the Company, has given
an opinion on the validity of the securities being registered. Mr.
Swisstack beneficially owns, or has the right to acquire under the Company’s
employee benefit plans, an aggregate of less than 1% of the Company’s common
stock.
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 April 30, 2009.
| LINCOLN EDUCATIONAL SERVICES CORPORATION | ||||
| By: | /s/ Cesar Ribeiro | |||
| Name: | Cesar Ribeiro | |||
| Title: |
Senior Vice
President, Chief Financial Officer and
Treasurer (Principal Accounting Officer and Financial Officer) |
|||
POWER
OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS,
that each person whose signature appears below constitutes and appoints Shaun E.
McAlmont and Cesar Ribeiro 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
and all amendments to the Registration Statement, including post-effective
amendments, and registration statements filed pursuant to Rule 462 under the
Securities Act, and to file the same, with all exhibits therewith, with 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 by the following persons in the indicated capacities on April 30,
2009.
|
Signature
|
Title
|
|
|
/s/
Shaun E. McAlmont
|
President
and Chief Executive Officer and Director
|
|
|
Shaun
E. McAlmont
|
|
|
|
/s/
David F. Carney
|
Executive
Chairman and Director
|
|
|
David
F. Carney
|
|
|
|
/s/ Cesar Ribeiro
|
Senior Vice President, Chief Financial Officer
and
Treasurer |
|
| Cesar Ribeiro | ||
|
/s/
Peter S. Burgess
|
Director
|
|
|
Peter
S. Burgess
|
|
|
|
/s/
James J. Burke, Jr.
|
Director
|
|
|
James
J. Burke, Jr.
|
|
|
|
/s/
Celia H. Currin
|
Director
|
|
|
Celia
H. Currin
|
|
|
|
/s/
Paul E. Glaske
|
Director
|
|
|
Paul
E. Glaske
|
|
|
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/s/
Charles F. Kalmbach
|
Director
|
|
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Charles
F. Kalmbach
|
|
|
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/s/
Alexis P. Michas
|
Director
|
|
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Alexis
P. Michas
|
|
|
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/s/
J. Barry Morrow
|
Director
|
|
|
J.
Barry Morrow
|
|
|
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/s/
Jerry G. Rubenstein
|
Director
|
|
|
Jerry
G. Rubenstein
|
|
Exhibit
Index
The
following exhibits are filed as part of this Registration
Statement:
|
Exhibit No.
|
Description of Document
|
|
4.1
|
Bylaws
of Lincoln Educational Services Corporation (incorporated by reference to
Exhibit 3.1 of the Company’s Form 8-K filed with the Commission on
June 28, 2005).
|
|
4.2
|
2005
Non-Employee Directors Restricted Stock Plan of Lincoln Educational
Services Corporation (as amended on April 30, 2009).*
|
|
5
|
Opinion
of Kenneth M. Swisstack*
|
|
23.1
|
Consent
of Deloitte & Touche LLP.*
|
|
23.2
|
Consent
of Kenneth M. Swisstack (included in Exhibit 5)*
|
|
24*
|
Power
of Attorney (included as part of the signature pages to this Registration
Statement).*
|
* Filed herewith
Exhibit
4.2
LINCOLN
EDUCATIONAL SERVICES CORPORATION
2005
NON-EMPLOYEE DIRECTORS RESTRICTED STOCK PLAN
(as amended on April 30,
2009)
|
1.
|
Purpose
of the Plan
|
The Plan
is intended to encourage ownership of Common Stock by Non-Employee Directors of
the Company, upon whose judgment and interest the Company is dependent for its
successful operation and growth, in order to increase their proprietary interest
in the Company’s success and to encourage them to serve as directors of the
Company.
|
2.
|
Definitions
and Rules of Construction
|
(a) Definitions. For
purposes of the Plan, the following capitalized words shall have the meanings
set forth below:
“Annual
Meeting” means an annual meeting of the Company’s
stockholders.
“Award”
means an award of Restricted Stock or Restricted Stock Units made pursuant to
the terms of the Plan.
“Award
Document” means an agreement, certificate or other type or form of
document or documentation approved by the Committee which sets forth the terms
and conditions of an Award. An Award Document may be in written,
electronic or other media, may be limited to a notation on the books and records
of the Company and, unless the Committee requires otherwise, need not be signed
by a representative of the Company or a Non-Employee Director.
“Board”
means the Board of Directors of the Company, including any directors who may be
participants in the Plan.
“Change in
Control” means a “Change in
Control” as defined in the Company’s 2005 Long-Term Incentive Plan.
“Code”
means the Internal Revenue Code of 1986, as amended, and the applicable rulings
and regulations thereunder.
“Committee” means the Compensation
Committee of the Board or such other committee appointed by the Board to
administer the Plan.
“Common
Stock” means the common stock of the Company, no par value per share, or
such other class of share or other securities as may be applicable under
Section 9(b) hereof.
“Company”
means Lincoln Education Services Corporation, or any successor to substantially
all of its business.
“Date of
Grant” means the date on which a Non-Employee Director is granted an
Award.
“Deferral
Election” means a Non-Employee Director’s irrevocable, written election
to defer his Award of Restricted Stock in accordance with Section 8
hereof.
“Deferral
Plan” means the Company’s 2005 Deferred Compensation Plan or any
successor plan thereto.
“Effective
Date” means the date on which the Plan is approved by the stockholders of
the Company.
“Exchange
Act” means the Securities and Exchange Act of 1934, as amended, and the
rules and regulations thereunder.
“Fair Market
Value” means (i) if the Common Stock is listed on a securities exchange
or is traded over the Nasdaq National Market, the closing sales price on such
exchange or over such system on such date or, in the absence of reported sales
on such date, the closing sales price on the immediately preceding date on which
sales were reported, or (ii) if the Common Stock is not listed on a securities
exchange or traded over the Nasdaq National Market, the mean between the bid and
offered prices as quoted by Nasdaq for such date, provided that if it is
determined that the fair market value is not properly reflected by such Nasdaq
quotations, Fair Market Value shall be determined by such other method as the
Committee determines in good faith to be reasonable.
“Non-Employee
Director” means a director of the Company who is not an officer or
employee of the Company or any Subsidiary.
“Plan”
means this Lincoln Educational Services Corporation 2005 Non-Employee Directors
Restricted Stock Plan, as described herein.
“Plan
Limit” has the meaning assigned to such term in Section 5
hereof.
“Restricted
Stock” means restricted shares of Common Stock granted to a Non-Employee
Director pursuant to Section 7 hereof. One share of Restricted Stock
corresponds to one share of Common Stock.
“Restricted Stock
Units” mean a contractual right to receive shares of Common Stock at a
subsequent date upon satisfaction of the conditions to vesting and settlement
pursuant to Section 8 hereof. One Restricted Stock Unit corresponds
to one share of Common Stock.
“Subsidiary”
means (i) a domestic or foreign corporation or other entity with respect to
which the Company, directly or indirectly, has the power, whether through the
ownership of voting securities, by contract or otherwise, to elect at least a
majority of the members of such corporation’s board of directors or analogous
governing body, or (ii) any other domestic or foreign corporation or other
entity in which the Company, directly or indirectly, has an equity or similar
interest and which the Board designates as a Subsidiary for purposes of the
Plan.
“Vesting
Date” has the meaning assigned to such term in Section 8(c)
hereof.
(b) Rules of
Construction. The masculine pronoun shall be deemed to include
the feminine pronoun and the singular form of a word shall be deemed to include
the plural form, unless the context requires otherwise. Unless the
text indicates otherwise, references to sections are to sections of the
Plan.
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3.
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Administration
|
(a) Authority. Subject
to the provisions of Section 12 hereof, the Committee shall have authority to
interpret the provisions of the Plan, to establish such rules and procedures as
may be necessary or advisable to administer the Plan and to make all
determinations necessary or advisable for the administration of the Plan,
including, without limitation, factual and legal determinations; provided, however, that no such
interpretation or determination shall change or affect the selection of persons
eligible to receive an Award under the Plan, the number of shares authorized
under the Plan or the terms and conditions thereof. The
interpretation and construction by the Committee of any provision of the Plan or
of any Award Document shall be final, binding and conclusive on all
parties.
A-2
(b) Delegation. The
Committee may designate one or more employees of the Company to carry out the
day-to-day aspects of the Committee’s responsibilities under such conditions as
it may set.
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4.
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Eligibility
|
Awards
under the Plan shall be granted pursuant to the provisions hereof to persons who
are Non-Employee Directors.
|
5.
|
Plan
Limit
|
Subject
to Section 9(b) hereof, the Company is authorized to issue up to 300,000 shares
of Common Stock under the Plan (the “Plan
Limit”). Such shares may be authorized but unissued shares of
Common Stock or reacquired shares of Common Stock held in the treasury of the
Company.
|
6.
|
Awards
in General
|
(a) General. The
terms and conditions of each Award shall be set forth in an Award Document,
which shall contain terms and conditions not inconsistent with the
Plan. Each Award made to a Non-Employee Director under the Plan shall
be granted for no consideration other than the provision of services (or such
minimum payment as may be required under applicable law) or for such other
consideration as the Committee may determine.
(b) Effect of Termination of
Service. Notwithstanding any provision of the Plan to the
contrary, in the event that a Non-Employee Director’s service on the Board
terminates, the Committee shall have full authority and discretion to accelerate
the vesting of an Award, which provisions may be specified in the applicable
Award Document or determined at a subsequent time. In the absence of
any action by the Committee to the contrary, upon such termination of service,
the Non-Employee Director’s Award shall, to the extent unvested, be immediately
forfeited as of such date of termination of service. The date of a
Non-Employee Director’s termination of service from the Board for any reason
shall be determined in the sole discretion of the Committee.
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7.
|
Terms
and Conditions of Restricted Stock
Awards
|
The terms
of this Section 7 are subject to the terms and provisions set forth above in
Section 6.
(a) Initial Grant of
Restricted
Stock. Subject to the provisions of Section 8, each
Non-Employee Director shall receive an Award of shares of Restricted Stock equal
to $60,000 (based on the Fair Market Value of a share of Common Stock on the
Date of Grant) or such other amount as the Committee may determine from time to
time for service as a director of the Company on the first day of the calendar
month following the month in which such Non-Employee Director becomes a
Non-Employee Director.
(b) Annual Grants of
Restricted
Stock. Subject to the provisions of Sections 7 and 8, as of
the date of each Annual Meeting commencing in 2006, each Non-Employee Director
shall automatically receive an Award of shares of Restricted Stock equal to
$40,000 (based on the Fair Market Value of a share of Common Stock on the Date
of Grant) for service as a director of the Company, provided that such
Non-Employee Director shall continue to serve as a director of the Company
immediately after such Annual Meeting, provided further that if a
person is elected, appointed or otherwise becomes a Non-Employee Director during
a period of 60 days prior to the Annual Meeting in any year, then such
Non-Employee Director shall not receive any Award of Restricted Stock pursuant
to this Section 7(b) for such year.
(c) Vesting. An
Award of Restricted Stock shall vest and become nonforfeitable at a rate of 33
1/3% on each of the first, second and third anniversaries of the Date of Grant
(subject to early vesting, if so provided by the Committee in its sole
discretion in the applicable Award Document or at a subsequent time, upon a
Change in Control of the Company).
A-3
(d) Issuance of
Shares. A certificate representing the whole shares of Common
Stock covered by an Award of Restricted Stock shall be issued in the
Non-Employee Director’s name, subject to the terms and conditions of the Plan
and the applicable Award Document, promptly after the Date of Grant, and such a
Non-Employee Director shall be deemed to own such number of whole shares of
Common Stock, including, without limitation, for purposes of dividends and
voting, as of the Date of Grant. The Board may require that the
certificate evidencing such shares be held in custody by the Company until the
restrictions thereon shall have lapsed, and that, as a condition of any Award of
Restricted Stock, the Eligible Director shall have delivered a stock power,
endorsed in blank, relating to the Common Stock covered by such Award of
Restricted Stock.
(e) Restrictions on Transfer of
Restricted Stock. Unless the Committee determines otherwise,
Restricted Stock shall not be transferable other than by the laws of descent and
distribution until such Restricted Stock has vested pursuant to Section 7(c)
but, in no event, prior to the expiration of a period of six (6) months from the
Date of Grant.
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8.
|
Deferral
Election; Terms and Conditions of Restricted Stock Unit
Awards
|
The terms
of this Section 8 are subject to the terms and provisions set forth above in
Section 6.
(a) Deferral
Election. Notwithstanding any provision of Section 7, each
Non-Employee Director shall be given the opportunity to irrevocably elect to
defer under the Deferral Plan receipt of all or any portion of an Award of
Restricted Stock otherwise receivable by him under paragraph (a) or (b) of
Section 7 through a Deferral Election. Any Deferral Election must be
made by a Non-Employee Director within the requisite time specified by the
Committee, but in no event later than December 31 of the taxable year prior to
the year in which the applicable Award of Restricted Stock is granted to such
Non-Employee Director.
(b) Grant of Restricted Stock
Units. When a Non-Employee Director makes a Deferral Election,
he shall receive a number of Restricted Stock Units in lieu of, and equal to,
the number of shares of Restricted Stock that is subject to such Deferral
Election. The Non-Employee Director shall receive an Award of these
Restricted Stock Units on the same date that the Award of Restricted Stock
subject to the Deferral Election otherwise would have been granted to him under
paragraph (a) or (b), as applicable, of Section 7. Except as
otherwise provided by the Committee in any Award Document, the terms and
conditions applicable to an Award of Restricted Stock Units are described in
this Section 8.
(c) Vesting. An
Award of Restricted Stock Units shall vest and become nonforfeitable at a rate
of 33 1/3% on each of the first, second and third anniversaries of the Date of
Grant (each, a “Vesting
Date”) (subject to early vesting, if so provided by the Committee in its
sole discretion in the applicable Award Document or at a subsequent time,
including, without limitation, upon a Change in Control of the
Company).
(d) No Issuance of Shares;
Deferral. Subject to Section 8(f), upon an Award of Restricted
Stock Units, or a portion thereof, becoming vested, no shares of Common Stock
shall be issued to the Non-Employee Director. Instead, the Restricted
Stock Units shall be credited, without any further action on the part of the
Non-Employee Director, to the Non-Employee Director’s deferred compensation
account under the Deferral Plan on the applicable Vesting Date. Any
Restricted Stock Units credited to the Deferral Plan shall be held in the
Deferral Plan as Restricted Stock Units until such time as they are settled
through the delivery of shares of Common Stock in accordance with the terms and
conditions of the Deferral Plan.
(e) Restrictions on Transfer of
Restricted Stock Units. Unless the Committee determines
otherwise, Restricted Stock Units shall not be transferable other than by the
laws of descent and distribution.
(f)
Dividend
Equivalent Payments. Unless the Committee determines
otherwise, if the Company pays any cash or other dividend or makes any other
distribution in respect of the shares of Common Stock underlying an Award of
Restricted Stock Units, or a portion thereof, before such Restricted Stock Units
are credited to the Deferral Plan in accordance with the terms of Section 8(d),
the Company shall maintain a bookkeeping record to which such amount of the
dividend or distribution in respect of such shares of Common Stock shall be
credited to an account for the Non-Employee Director and distributed in whole
shares of Common Stock at the time the Award, or portion thereof is
vested.
A-4
(g) No Rights as a
Stockholder. Except as otherwise provided by the Committee in
the applicable Award Document, a Non-Employee Director shall have no rights as a
stockholder with respect to any Awards of Restricted Stock Units or any value
thereof deferred under the Deferral Plan.
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9.
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No
Restriction on Right of Company to Effect Corporate
Changes
|
(a) Authority of the Company and
Stockholders. The existence of the Plan, the Award Documents
and the Awards granted hereunder shall not affect or restrict in any way the
right or power of the Company or the stockholders of the Company to make or
authorize any adjustment, recapitalization, reorganization or other change in
the Company’s capital structure or its business, any merger or consolidation of
the Company, any issue of stock or of options, warrants or rights to purchase
stock or of bonds, debentures, preferred or prior preference stocks whose rights
are superior to or affect the Common Stock or the rights thereof or which are
convertible into or exchangeable for Common Stock, or the dissolution or
liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.
(b) Change in
Capitalization. Notwithstanding any provision of the Plan or
any Award Document, the number and kind of shares authorized for issuance under
Section 5 hereof may be equitably adjusted in the sole discretion of the
Committee in the event of a stock split, stock dividend, recapitalization,
reorganization, merger, consolidation, extraordinary dividend, split-up,
spin-off, combination, exchange of shares, warrants or rights offering to
purchase Common Stock at a price substantially below Fair Market Value or other
similar corporate event affecting the Common Stock in order to preserve, but not
increase, the benefits or potential benefits intended to be made available under
the Plan. In addition, upon the occurrence of any of the foregoing
events, the number and kind of shares subject to any outstanding Awards may be
equitably adjusted (including by payment of cash to a Non-Employee Director) in
the sole discretion of the Committee in order to preserve the benefits or
potential benefits intended to be made available to Non-Employee Directors
granted Awards. Such adjustments shall be made by the Committee, in
its sole discretion, whose determination as to what adjustments shall be made,
and the extent thereof, shall be final. Unless otherwise determined
by the Committee, such adjusted Awards shall be subject to the same restrictions
to which the underlying Award is subject.
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10.
|
Miscellaneous
|
(a) Tax
Withholding. The Company shall require as a condition to
delivery of shares of Common Stock that the Non-Employee Director remit an
amount sufficient to satisfy all applicable tax withholding requirements (if
any) and any or all indebtedness or other obligation of the Non-Employee
Director to the Company or any of its Subsidiaries.
(b) No Right to Continued
Directorship. Nothing in the Plan shall confer upon any
Non-Employee Director the right to continue as a director of the Company or
affect any right that the Company or any Non-Employee Director may have to
terminate the service of such Non-Employee Director.
(c) Section 16(b) of the
Exchange Act. The Plan is intended to comply in all respects
with Section 16(b) of the Exchange Act. Notwithstanding anything
contained in the Plan or any Award Document under the Plan to the contrary, if
the consummation of any transaction under the Plan, or the taking of any action
by the Committee in connection with a Change in Control of the Company, would
result in the possible imposition of liability on a Non-Employee Director
pursuant to Section 16(b) of the Exchange Act, the Committee shall have the
right, in its sole discretion, but shall not be obligated, to defer such
transaction or the effectiveness of such action to the extent necessary to avoid
such liability, but in no event for a period longer than 180 days.
(d)
Securities Law
Restrictions. The Committee may require each Non-Employee
Director purchasing or acquiring shares of Common Stock pursuant to an Award
under the Plan to represent to and agree with the Company in writing that such
Non-Employee Director is acquiring the shares of Common Stock for investment
purposes and not with a view to the distribution thereof. All
certificates for shares of Common Stock delivered under the Plan shall be
subject to such stock-transfer orders and other restrictions as the Committee
may deem advisable under the rules, regulations, and other requirements of the
Securities and Exchange Commission, any exchange upon which the shares of Common
Stock are then listed, and any applicable securities law, and the
A-5
Committee
may cause a legend or legends to be put on any such certificates to make
appropriate reference to such restrictions.
(e) Governing
Law. The Plan and all agreements entered into under the Plan
shall be construed in accordance with and governed by the laws of the State of
New York.
(f) Unfunded Plan. The Plan is
intended to constitute an unfunded plan for incentive
compensation. Prior to the issuance of Shares in connection with an
Award, nothing contained herein shall give any Participant any rights that are
greater than those of a general unsecured creditor of the Company. In
its sole discretion, the Committee may authorize the creation of trusts or other
arrangements to meet the obligations created under the Plan to deliver Shares
with respect to awards hereunder.
(g) Section 409A of the
Code. If any provision of the Plan or an Award Document
contravenes any regulations or Department of Treasury guidance promulgated under
Section 409A of the Code or could cause an Award to be subject to the interest
and penalties under Section 409A of the Code, such provision of the Plan or any
Award Document shall be modified to maintain, to the maximum extent practicable,
the original intent of the applicable provision without violating the provisions
of Section 409A of the Code.
|
11.
|
Term
of the Plan
|
Unless
earlier terminated pursuant to Section 12 hereof, the Plan shall terminate on
the tenth anniversary of the Effective Date, except with respect to Awards then
outstanding.
|
12.
|
Amendment
and Termination
|
The Plan
may be terminated and may be modified or amended by the Board at any time and
from time-to-time; provided,
however, that (i) no modification or amendment shall be effective without
stockholder approval if such approval is required by law or under the rules of
Nasdaq or the stock exchange on which the shares are listed, and (ii) no such
termination, modification, or amendment of the Plan shall adversely alter or
affect the terms of any then outstanding Awards previously granted hereunder
without the consent of the holder thereof. Notwithstanding the
foregoing, the Board shall have broad authority to amend the Plan or any Award
under the Plan without the consent of a Participant to the extent it deems
necessary or desirable to (a) comply with, or take into account changes in
applicable tax laws, securities laws, accounting rules and other applicable
laws, rules and regulations or (b) to ensure that an Award is not subject to
interest and penalties under Section 409A of the Code.
A-6
Exhibit
5
[LINCOLN
EDUCATIONAL SERVICES CORPORATION LETTERHEAD]
April 30,
2009
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 Senior
Counsel and Corporate Secretary of Lincoln Educational Services Corporation, a
New Jersey corporation (“Lincoln”), I have been requested to render this opinion
for filing as Exhibit 5 to Lincoln’s Registration Statement on Form S-8 (the
“Registration Statement”) to be filed by Lincoln with the Securities and
Exchange Commission on the date hereof. The Registration Statement
covers up to 200,000 shares of Lincoln’s common stock, no par value per share
(the “Shares”) to be issued and sold under the 2005 Non-Employee Directors
Restricted Stock Plan (the “Plan”).
I have
examined the Registration Statement, and I have also examined and relied as to
factual matters upon the representations and warranties contained in originals,
or copies certified or otherwise identified to my satisfaction, of such
documents, records, certificates and other instruments as in my judgment are
necessary or appropriate to enable me to render the opinion expressed
below. 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. The opinion expressed below is limited to the New Jersey
Business Corporation Act, and I do not express any opinion herein concerning any
other law.
Based on
the foregoing, I am of the opinion that Lincoln is duly organized and existing
under the laws of the State of New Jersey, and the Shares, when issued and
delivered by Lincoln in accordance with the terms of the Plan, will be legally
issued, fully paid and non-assessable.
The
opinions expressed herein are based upon the laws in effect on the date hereof,
and I assume no obligation to revise or supplement this opinion should such laws
be changed by legislative action, judicial decision or otherwise.
I hereby
consent to the filing of this opinion as Exhibit 5 to Lincoln’s Registration
Statement on Form S-8 and to the reference to me under the caption “Interests of
Named Experts and Counsel” in the Registration Statement.
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Very truly
yours,
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| /s/ Kenneth M. Swisstack | ||
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Kenneth M. Swisstack | |
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form
S-8 of our reports dated March 12, 2009, relating to the consolidated financial
statements and financial statement schedule of Lincoln Educational Services
Corporation and subsidiaries (the “Company”) (which report expressed an
unqualified opinion and includes an explanatory paragraph relating to the
adoption of the provisions of FASB Interpretation No. 48, “Accounting for Uncertainty in Income
Taxes”), and the effectiveness of the Company’s internal control over
financial reporting, appearing in the Annual Report on Form 10-K of the Company
for the year ended December 31, 2008.
/s/
Deloitte & Touche LLP
Parsippany,
New Jersey
April 30,
2009