As filed with the Securities and Exchange Commission on June 23, 2005
Registration No. 333-[___]
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
LINCOLN EDUCATIONAL SERVICES CORPORATION
(Exact name of Registrant as specified in its charter)
New Jersey 57-1150621
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
200 Executive Drive, Suite 340
West Orange, New Jersey 07052
(Address of Registrant's principal executive offices)
LINCOLN TECHNICAL INSTITUTE MANAGEMENT STOCK OPTION PLAN
STOCK OPTION AND CONSULTING AGREEMENT BETWEEN LINCOLN EDUCATIONAL
SERVICES CORPORATION AND STEVEN W. HART
(Full title of the plans)
David E. Carney
Chairman of the Board and Chief Executive Officer
Lincoln Educational Services Corporation
200 Executive Drive, Suite 340
West Orange, New Jersey 07052
(973) 736-9340
(Name, address and telephone number of agent for service)
With copies of all communication to:
Rohan S. Weerasinghe, Esq.
Shearman & Sterling LLP
599 Lexington
New York, New York 10022
(212) 848-7179
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered (1) Registered (1) Offering Price Aggregate Offering Registration Fee
Per Share Price
- -----------------------------------------------------------------------------------------------------------------------
Ordinary Shares of Common Stock 2,087,835 $8.10 (2) $16,911,463.50 (2) $1,990.48
of Lincoln Educational Services
Corporation
To be issued for option grants
under the Lincoln Technical
Institute Management Stock
Option Plan
- ----------------------------------------------------------------------------------------------------------------------
=======================================================================================================================
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered (1) Registered (1) Offering Price Aggregate Offering Registration Fee
Per Share Price
- -----------------------------------------------------------------------------------------------------------------------
To be issued for option grants 161,500 $1.54 (3) $248,710 (3) $29.27
under the Stock Option and
Consulting Agreement between
Lincoln Educational Services
Corporation and Steven W. Hart
- ----------------------------------------------------------------------------------------------------------------------
(1) For the sole purpose of calculating the registration fee, the
number of ordinary shares of common stock to be registered under
this Registration Statement has been broken down into two
subtotals.
(2) Pursuant to Rules 457(c) and 457(h) of the Securities Act, the
Proposed Maximum Offering Price Per Share and the Proposed Maximum
Aggregate Offering Price for a total of 2,087,835 ordinary shares
of common stock previously granted under the Lincoln Technical
Institute Management Stock Option Plan are based on the per share
weighted average exercise price of the stock options. The per
share weighted average exercise price for the stock options
granted under the Lincoln Technical Institute Management Stock
Option Plan is $8.10.
(3) Pursuant to Rule 457(h), the offering price is $1.54 per ordinary
share of common stock, which is the per share exercise price of
outstanding options granted pursuant to the Stock Option and
Consulting Agreement between the Registrant and Steven W. Hart.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Item 1 and Item 2 of Part I of Form S-8 is
omitted from this filing in accordance with Rule 428 under the Securities Act of
1933, as amended (the "Securities Act"), and the introductory note to Part I of
Form S-8. The documents containing the information specified in Part I will be
delivered to the participants in the plans covered by this Registration
Statement as required by Rule 428(b)(1).
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We incorporate by reference our Registration Statement on Form S-1
(File No. 333-123644) (the "Form S-1"), filed on June 22, 2005 with the
Securities and Exchange Commission (the "Commission"), and a description of the
Registrant's common stock contained in the Form S-1.
All documents that we subsequently file with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered have been sold, or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and are a part thereof
from the date of filing of such documents.
Any statement contained in a document incorporated or deemed
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed document
which is incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The New Jersey Business Corporation Act permits or requires
indemnification of officers and directors in the event that certain statutory
standards of conduct are met.
The Registrant's certificate of incorporation and bylaws limits the
liability of directors to the maximum extent permitted by New Jersey law.
Specifically, a director will not be personally liable for monetary damages for
breach of fiduciary duty as a director, except liability for: (i) any breach of
their duty of loyalty to the Registrant or the Registrant's stockholders; (ii)
acts or omissions not in good faith or which involve a knowing violation of the
law; or (iii) any transaction from which the director derived an improper
personal benefit. The limitation of liability does not apply to liabilities
arising under the federal securities laws and does not affect the availability
of equitable remedies such as injunctive relief or rescission.
The Registrant's bylaws provide that it will indemnify its directors
and officers and may indemnify its employees and other agents to the fullest
extent permitted by law. The Registrant believes that indemnification under its
bylaws covers at least negligence and gross negligence on the part of
indemnified parties.
The Registrant's bylaws also provide that it will advance expenses
incurred by a director or officer in advance of the final disposition of any
action or proceeding and it may advance expenses incurred by its employees or
other agents in advance of the final disposition of any action or proceeding.
The Registrant's bylaws also permit it to secure insurance on behalf of any
officer, director, employee or other agent for any liability arising out of his
or her actions in his or her capacity as an officer, director, employee or other
agent. The Registrant believes that these bylaw provisions and indemnification
agreements are necessary to attract and retain the services of highly qualified
persons as directors and officers.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description of Document
---------- -----------------------
4.1 Bylaws of Lincoln Educational Services Corporation
(incorporated by reference from the Form S-1 filed on
June 22, 2005).
4.2 Lincoln Technical Institute Management Stock
Option Plan and the Stock Option and
Consulting Agreement between the Registrant and
Steven W.
Hart.
5 Opinion of McCarter & English, LLP as to the validity
of ordinary shares of common stock issued pursuant to
the Lincoln Technical Institute Management Stock
Option Plan and the Stock Option and Consulting
Agreement between the Registrant and Steven W. Hart.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of McCarter & English, LLP (included in
Exhibit 5).
24 Power of Attorney with respect to amendments to this
Registration Statement are included on the signature
pages.
Item 9. Undertakings.
(a) We undertake:
(1) To file, during any period in which offers or sales are being made
of securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the information required
to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission
by us pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) We further undertake that, for purposes of determining any
liability under the Securities Act, each filing of our annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in
the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
for our payment of expenses incurred or paid by one of our directors, officers
or controlling persons in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, then, unless in the opinion of
our counsel the matter has been settled by controlling precedent, we will submit
to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, Lincoln Educational
Services Corporation certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in West Orange, New Jersey, on June 22, 2005.
LINCOLN EDUCATIONAL SERVICES CORPORATION
By: /s/ Cesar Ribeiro
----------------------
Name: Cesar Ribeiro
Title: Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Cesar Ribeiro and David F. Carney as such
person's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for such person and in such person's name,
place and stead, in any and all capacities, to sign any amendments to this
Registration Statement, including post-effective amendments, and registration
statements filed pursuant to Rule 462 under the Securities Act, and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Commission, and does hereby grant unto each said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that each of said attorney-in-fact and agent, or
his substitute therefor, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the indicated
capacities on June 22, 2005.
Name and Signature Title
- ------------------ -----
/s/ David F. Carney Chief Executive Officer and
- --------------------------- Chairman of the Board of Directors
David F. Carney
/s/ Lawrence E. Brown
- --------------------------- President, Chief Operating Officer
Lawrence E. Brown
/s/ Scott M. Shaw Senior Vice-President, Strategic
- --------------------------- Planning & Development
Scott M. Shaw
/s/ Cesar Ribeiro Vice-President, Chief Financial
- --------------------------- Officer and Treasurer
Cesar Ribeiro
/s/ Alexis P. Michas
- --------------------------- Director
Alexis P. Michas
Name and Signature Title
- ------------------ -----
/s/ James J. Burke, Jr.
- --------------------------- Director
James J. Burke, Jr.
/s/ Steven W. Hart
- --------------------------- Director
Steven W. Hart
/s/ Jerry G. Rubinstein
- --------------------------- Director
Jerry G. Rubinstein
/s/ John Petillo
- --------------------------- Director
John Petillo
/s/ Paul Glaske
- --------------------------- Director
Paul Glaske
/s/ Peter S. Burgess
- --------------------------- Director
Peter S. Burgess