SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934
Filed by the registrant [X]
Filed by a party other than the registrant [ ]
Check the appropriate box:
[ ] Preliminary proxy statement
[X] Definitive proxy statement
[ ] Definitive additional materials
[ ] Soliciting material pursuant to Rule 14a-12
ARK RESTAURANTS CORP.
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(Name of Registrant as Specified in Its Charter)
ARK RESTAURANTS CORP.
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(Name of Person(s) Filing Proxy Statement)
Payment of filing fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transactions applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[ ] Fee paid previously with preliminary materials
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for which
the offsetting fee was paid previously. Identify the previous
filing by registration statement number, or the form or
schedule and the date of its filing.
(1) Amount previously paid:
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(2) Form, schedule or registration statement no.:
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(3) Filing party:
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(4) Date filed:
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ARK RESTAURANTS CORP.
85 FIFTH AVENUE
NEW YORK, NEW YORK 10003
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD ON MARCH 14, 2001
To Shareholders of
ARK RESTAURANTS CORP.
NOTICE IS HEREBY GIVEN that the Annual Meeting of Shareholders of ARK
RESTAURANTS CORP. (the 'Company') will be held on March 14, 2001 at 10:00 A.M.
at Bryant Park Grill, located at 25 West 40th Street, New York, New York for the
following purposes:
(1) To elect a board of nine directors;
(2) To ratify the appointment of Deloitte & Touche LLP as independent
auditors for the 2001 fiscal year; and
(3) To transact such other business as may properly come before the
meeting or any adjournments thereof.
The Board of Directors has fixed the close of business on February 6, 2001
as the record date for the determination of shareholders entitled to notice of,
and to vote at, the meeting.
YOU ARE EARNESTLY REQUESTED, WHETHER OR NOT YOU PLAN TO BE PRESENT AT THE
MEETING, TO DATE, SIGN AND RETURN PROMPTLY THE ACCOMPANYING PROXY IN THE
ENCLOSED ENVELOPE TO WHICH NO POSTAGE NEED BE AFFIXED IF MAILED IN THE UNITED
STATES. IF YOU ATTEND THE MEETING IN PERSON, YOU MAY WITHDRAW THE PROXY AND VOTE
YOUR OWN SHARES.
By Order of the Board of Directors,
VINCENT PASCAL
Secretary
New York, New York
February 9, 2001
ARK RESTAURANTS CORP.
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PROXY STATEMENT
--------------------------
This Proxy Statement is furnished in connection with the solicitation by the
Board of Directors (the 'Board') of Ark Restaurants Corp., a New York
corporation (the 'Company'), of proxies to be used at the Annual Meeting of
Shareholders to be held at Bryant Park Grill, located at 25 West 40th Street,
New York, New York, at 10:00 A.M. on March 14, 2001 and at any adjournment or
adjournments thereof (the 'Meeting').
If the enclosed proxy is properly executed and returned, the shares
represented thereby will be voted in accordance with the instructions specified
therein and if no instructions are given, will be voted (i) IN FAVOR of the
nominees for election as directors and (ii) IN FAVOR of the ratification of the
appointment of Deloitte & Touche LLP as independent auditors for the Company for
the 2001 fiscal year. Election of directors is by a plurality of votes cast at
the Meeting in person or by proxy. All other proposals to be considered at the
Meeting will be determined by a plurality of votes cast at the Meeting in person
or by proxy.
The proxy may be revoked at any time prior to its exercise by written notice
to the Company, by submission of another proxy bearing a later date, or by
voting in person at the Meeting. Such revocation will not affect any vote taken
prior thereto. The mere presence at the Meeting of the person appointing a proxy
will not revoke the appointment.
The approximate date this Proxy Statement and the accompanying Proxy were
first mailed to shareholders was on or about February 9, 2001. The Company's
principal executive offices are located at 85 Fifth Avenue, New York, New York
10003.
VOTING SECURITIES -- RECORD DATE
Only holders of record of the Company's Common Stock at the close of
business on February 6, 2001 will be entitled to notice of and to vote at the
Meeting. On that date 3,181,699 shares of Common Stock were issued and
outstanding. Each outstanding share of Common Stock entitles the holder thereof
to one vote.
1
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information at January 29, 2001, with
respect to the beneficial ownership of shares of Common Stock owned by (i) each
person known by the Company to own beneficially more than 5% of the outstanding
shares of Common Stock, (ii) each director and nominee for election as director
of the Company, and (iii) all officers and directors of the Company as a group:
NAME AND ADDRESS AMOUNT AND NATURE OF
OF BENEFICIAL OWNER BENEFICIAL OWNERSHIP(1) PERCENT OF CLASS
------------------- ----------------------- ----------------
Michael Weinstein ..................................... 964,138(2) 28.9%
85 Fifth Avenue
New York, New York 10003
FMR Corp .............................................. 285,000(3) 8.5%
82 Devonshire Street
Boston, Massachusetts 02109
Bruce R. Lewin ........................................ 231,600 6.9%
c/o Bruce R. Lewin Gallery
136 Prince Street
New York, New York 10012
Arthur Zankel ......................................... 225,000(4) 6.7%
535 Madison Avenue
New York, New York 10022
Vincent Pascal ........................................ 71,190(5) 2.1%
85 Fifth Avenue
New York, New York 10003
Robert Towers ......................................... 77,750(6) 2.3%
85 Fifth Avenue
New York, New York 10003
Donald D. Shack ....................................... 42,603(7) 1.3%
530 Fifth Avenue
New York, New York 10036
Andrew Kuruc .......................................... 49,550(8) 1.5%
85 Fifth Avenue
New York, New York 10003
Jay Galin ............................................. 26,000 Less than 1%
520 Eighth Avenue
New York, New York 10018
Ernest Bogen .......................................... 17,320(9) Less than 1%
85 Fifth Avenue
New York, New York 10003
Paul Gordon ........................................... 36,250(10) 1.1%
85 Fifth Avenue
New York, New York 10003
Mitchell Levy(11) ..................................... 0 0%
38 Woods Drive
Roslyn, New York 11576
All directors and officers as a group (nine persons)... 1,516,401(12) 45.4%
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(1) Except to the extent otherwise indicated, to the best of the Company's
knowledge, each of the indicated persons exercises sole voting and
investment power with respect to all shares beneficially owned by him.
(2) Includes 24,800 shares owned by The Weinstein Foundation, a private
foundation of which Mr. Weinstein acts as trustee and as to which shares
Mr. Weinstein has shared investment and shared voting power and 65,000
shares issuable upon exercise of currently exercisable options granted
under the Company's 1996 Stock Option Plan.
(3) Based upon information set forth in Schedule 13G filed by FMR Corp. with
the Securities and Exchange Commission on or about February 12, 2000.
Fidelity Management & Research Company ('Fidelity'), a wholly-owned
subsidiary of FMR Corp.,
(footnotes continued on next page)
2
(footnotes continued from previous page)
is the beneficial owner of 285,000 shares as a result of acting as
investment adviser to several investment companies. The ownership by one
investment company, Fidelity Low-Priced Stock Fund, amounted to 285,000
shares. Mr. Edward C. Johnson 3d, FMR Corp., through its control of
Fidelity, and the aforementioned investment companies each has the power to
dispose of the 285,000 shares.
(4) Based upon information set forth in Schedule 13D filed by Mr. Arthur Zankel
with the Securities and Exchange Commission on or about July 6, 2000.
(5) Includes 21,250 shares issuable upon exercise of currently exercisable
stock options granted under the Company's 1996 Stock Option Plan.
(6) Includes 21,250 shares issuable upon exercise of currently exercisable
stock options granted under the Company's 1996 Stock Option Plan.
(7) Includes 40,000 shares owned by Skylark Partners, a partnership of which
Mr. Shack is a general partner.
(8) Includes 21,250 shares issuable upon exercise of currently exercisable
stock options granted under the Company's 1996 Stock Option Plan.
(9) Includes 7,320 shares owned by Mr. Bogen's spouse, as to which Mr. Bogen
disclaims beneficial ownership.
(10) Includes 28,750 shares issuable upon exercise of currently exercisable
stock options granted under the Company's 1996 Stock Option Plan.
(11) Mr. Levy resigned as officer of the Company effective September 9, 2000.
(12) Includes 157,500 shares issuable upon exercise of currently exercisable
stock options granted under the Company's 1996 Stock Option Plan or
exercisable within 60 days of the date of this Proxy Statement.
-------------------
In the event of the death of Michael Weinstein, the Company has agreed to
purchase from his estate, at the option of his executor or legal representative,
such number of shares of Common Stock as may be purchased with the proceeds of a
$5,000,000 insurance policy maintained by the Company on the life of Mr.
Weinstein, at a price per share equal to the greater of the then book value or
the then fair market value of such shares. The Company is obligated to maintain
$5,000,000 of insurance on the life of Mr. Weinstein during the term of the
agreement.
3
PROPOSAL 1: ELECTION OF DIRECTORS
A board of nine directors is to be elected at the Meeting. Unless a proxy
shall specify that it is not to be voted for the directors, it is intended that
the shares represented by each duly executed and returned proxy will be voted IN
FAVOR of the election as directors of the persons named below.
Each of the persons named below is at present a director of the Company. If
for any reason any nominee is not a candidate for election at the Meeting, such
proxies will be voted for a substitute nominee and for the others named below.
The Board does not anticipate that any of the nominees will not be a candidate.
PRINCIPAL OCCUPATION AND DIRECTOR
NAME AGE POSITION WITH THE COMPANY SINCE
---- --- ------------------------- -----
Ernest Bogen......... 69 Chairman of the Board of the Company 1983
Michael Weinstein.... 57 President of the Company 1983
Vincent Pascal....... 57 Vice President and Secretary of the Company 1985
Robert Towers........ 53 Vice President and Treasurer of the Company 1987
Andrew Kuruc......... 43 Vice President and Controller of the Company 1989
Paul Gordon.......... 49 Vice President of the Company 1996
Donald D. Shack...... 72 Attorney, member of law firm of Shack & Siegel, P.C., 1985
general counsel to the Company
Jay Galin............ 64 Chief Executive Officer, G&G Retail, Inc. 1988
Bruce R. Lewin....... 53 Owner -- Bruce R. Lewin Gallery 2000
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ERNEST BOGEN has been a director of the Company since its inception in
January 1983 and was also Secretary until September 1985 and Treasurer until
March 1987. He was elected Chairman of the Board of Directors of the Company in
September 1985. Since 1978, Mr. Bogen has been an officer, director and 25%
shareholder of Easy Diners, Inc., a restaurant management company which operates
a restaurant in New York City. Mr. Bogen is also an officer, director, and 25%
shareholder of RSWB Corp. which operates a restaurant in New York City that it
acquired in June 1997, and of BSWR Corp. which operates a restaurant in New York
City that it acquired in April 1998. During the past five years, Mr. Bogen had
various interests in entities which owned and operated restaurants in Florida.
At the present time, Mr. Bogen is an officer, director and 25% shareholder of
BSRS Corp. which owns and operates a restaurant in Boca Raton, Florida that it
acquired in February 1999.
MICHAEL WEINSTEIN has been President and a director of the Company since its
inception in January 1983. Mr. Weinstein has been an officer, director and 25%
shareholder of Easy Diners, Inc. since 1978, RSWB Corp. since June 1997 and BSWR
since April 1998. Mr. Weinstein spends substantially all of his business time on
Company-related matters.
VINCENT PASCAL was elected Vice President and a director of the Company in
October 1985. Mr. Pascal became Secretary of the Company in January 1994.
ROBERT TOWERS has been employed by the Company since November 1983 and was
elected Vice President, Treasurer and a director in March 1987.
ANDREW KURUC was elected Vice President of the Company in 1993 and a
director of the Company in November 1989. Mr. Kuruc has been employed as
Controller of the Company since April 1987.
PAUL GORDON has been employed by the Company since 1983 and was elected as a
director in November 1996. Mr. Gordon is the manager of the Company's Las Vegas
operations and Senior Vice President and a director of the Company's Las Vegas
subsidiaries. Prior to assuming that role in 1996, Mr. Gordon was the manager of
the Company's operations in Washington, D.C. commencing in 1989.
DONALD D. SHACK was elected a director of the Company in October 1985. Since
April 1993, Mr. Shack has been a member of the law firm of Shack & Siegel, P.C.,
general counsel to the Company. From January 1990 to April 1993, Mr. Shack was a
member of the law firm of Whitman & Ransom,
4
which firm was general counsel to the Company during that time. Mr. Shack is
also a director of the following publicly-held companies: Andover Togs, Inc.,
International Citrus Corporation and Just Toys, Inc.
JAY GALIN was elected a director of the Company in January 1988. Since
August 1998, Mr. Galin has been Chairman of the Board of G & G Retail Holdings,
Inc. and its subsidiary G & G Retail, Inc., a chain of retail clothing stores.
For more than five years prior thereto, Mr. Galin was President of its
predecessor, G. & G. Shops, Inc.
BRUCE LEWIN was elected a director of the Company in February 2000. Mr.
Lewin is the owner and operator of Bruce R. Lewin Gallery, a fine art
gallery in Soho, New York. Mr. Lewin was formerly a director of the Bank of
Great Neck (In New York), a former director and officer of Continental Hosts,
Ltd., and a former director of the New York City Chapter of the New York State
Restaurant Association.
-------------------
The Company provides purchasing and bookkeeping services to restaurants in
which Messrs. Weinstein and Bogen have interests, for which the Company receives
a fee which has not exceeded $30,000 in any fiscal year.
All officers of the Company are elected by and serve at the pleasure of the
Board. There are no family relationships among any of the directors.
Messrs. Galin, Lewin and Shack, the Company's non-employee directors, were
each paid $5,000 in fiscal year 2000 for their services to the Company as
directors.
The Company made loans to Michael Weinstein, Robert Towers and Vincent
Pascal, which loans were made primarily in connection with the exercise of stock
options as provided under the Company's Stock Option Plans. All of the loans
bear interest at the prime rate in effect from time to time. The loans are
payable on demand. During fiscal 2000, the largest amount of indebtedness of
Mr. Weinstein outstanding at any one time was $717,681. As of January 11, 2001,
Mr. Weinstein was indebted to the Company in the amount of $117,681. During
fiscal 2000, the largest amount of indebtedness of Mr. Towers outstanding at
any one time was $379,561. As of January 10, 2001, Mr. Towers was indebted to
the Company in the amount of $402,761. During fiscal 2000, the largest amount
of indebtedness of Mr. Pascal outstanding at any one time was $194,197. As of
January 10, 2001, Mr. Pascal was indebted to the Company in the amount
of $176,048.
MEETINGS AND COMMITTEES OF THE BOARD OF DIRECTORS
Messrs. Lewin and Galin currently serve as members of the Stock Option
Committee of the Board. The Stock Option Committee administers the Company's
1996 Stock Option Plan. During the last fiscal year the Stock Option Committee
held no meetings and took no action by unanimous written consent of the members
of the Committee.
Messrs. Galin, Lewin and Shack currently serve as members of the Audit
Committee of the Board of Directors. The Audit Committee is responsible for,
among other things, receiving and reviewing the recommendations of the
independent auditors, reviewing consolidated financial statements of the
Company, meeting periodically with the independent auditors and Company
personnel with respect to the adequacy of internal accounting controls,
resolving potential conflicts of interest and reviewing Company's accounting
policies. Messrs. Galin and Lewin are independent directors, within the meaning
of Rule 4200(a)(14). While Mr. Shack is not an independent director, within the
meaning of NASD Rule 4200, (due to his membership in a law firm that
represents the Company), the Board has determined that Mr. Shack's membership
on the Audit Committee is required by the best interests of the Company and
its shareholders, because Mr. Shack has served on the Audit Committee of the
Company for many years and on the board and audit committees of several other
publicly traded corporations. He is very familiar with the work and
responsibilities of the Committee, and the financial analysis that is required.
The Board has adopted a written charter for this Committee, and a copy of the
charter is included as an appendix to this proxy statement. The report of this
committee is set forth later in this proxy statement. The Audit Committee held
one meeting during the past fiscal year.
The Company does not have a Nominating Committee.
5
Messrs. Bogen, Galin and Shack currently serve as members of the
Compensation Committee. The Compensation Committee is responsible for reviewing
the Company's compensation policies, establishing the compensation for the
President and Chief Executive Officer of the Company and making recommendations
on compensation for other executive officers of the Company. The Compensation
Committee held one meeting during the past fiscal year.
During the Company's past fiscal year, the Board held one meeting and took
action on four occasions by unanimous written consent of the members of the
Board. Each member of the Board attended at least 75% of the meetings of the
Board and committees on which he served, except for Paul Gordon and Ernest Bogen
who were absent from one meeting held by the Board during the past fiscal year.
6
EXECUTIVE COMPENSATION
The Summary Compensation Table shown below sets forth certain information
concerning the annual and long-term compensation for services in all capacities
to the Company for the 2000, 1999, and 1998 fiscal years, of those persons who
were, at September 30, 2000, (i) President and Chief Executive Officer of the
Company and (ii) the other four most highly compensated executive officers of
the Company (and one former officer).
SUMMARY COMPENSATION TABLE
ANNUAL LONG-TERM
COMPENSATION COMPENSATION
-------------------- ------------------
NAME AND PRINCIPAL POSITION YEAR SALARY($) BONUS($) OPTIONS AWARDED(#)
--------------------------- ---- --------- -------- ------------------
Michael Weinstein ................................ 2000 458,090 44,435 --
President and Chief Executive Officer 1999 429,023 -- 60,000
1998 400,354 80,190 --
Vincent Pascal ................................... 2000 230,943 22,099 --
Vice President and Secretary 1999 216,354 -- 15,000
1998 205,167 40,180 --
Robert Towers .................................... 2000 230,943 22,099 --
Vice President and Treasurer 1999 220,217 -- 15,000
1998 199,513 40,180 --
Andrew Kuruc ..................................... 2000 180,455 17,270 --
Vice President and Controller 1999 169,077 -- 15,000
1998 160,019 31,400 --
Paul Gordon ...................................... 2000 176,947 81,361 --
Vice President 1999 163,866 75,698 15,000
1998 184,675 63,821 --
Mitchell Levy(1).................................. 2000 237,303 25,000 --
1999 250,000 -- --
1998 134,615 -- 100,000
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(1) Mr. Levy resigned as Vice President of the Company effective September 9,
2000.
OPTION GRANTS IN LAST FISCAL YEAR
No options to purchase the Company's Common Stock were granted in fiscal
year 2000 to the President and Chief Executive Officer of the Company and the
other four most highly compensated executive officers of the Company.
7
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR
AND FISCAL YEAR END OPTION VALUES
The table shown below sets forth certain information for the President and
Chief Executive Officer of the Company and the other four most highly
compensated executive officers of the Company (i) with respect to option
exercises during fiscal 2000 and (ii) at September 30, 2000, with respect to
unexercised options to purchase shares of the Company's Common Stock under the
Company's 1985 and 1996 Stock Option Plans.
NUMBER OF UNEXERCISED VALUE OF UNEXERCISED
OPTIONS AT FISCAL IN-THE-MONEY OPTIONS
SHARES YEAR-END AT FISCAL YEAR-END(1)
ACQUIRED VALUE --------------------------- ---------------------------
NAME ON EXERCISE REALIZED EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- ----------- -------- ----------- ------------- ----------- -------------
Michael Weinstein............. 13,000 13,000 52,500 57,500 -- --
Vincent Pascal................ -- -- 16,875 15,625 -- --
Robert Towers................. 13,000 13,000 16,875 15,625 -- --
Andrew Kuruc.................. -- -- 16,875 15,625 -- --
Paul Gordon................... 7,500 7,500 22,500 17,500 -- --
Mitchell Levy(2).............. -- -- -- -- -- --
- ---------
(1) Based on the closing sale price of $9.1875 on the NASDAQ/National Market
System of the Company's Common Stock on September 29, 2000.
(2) Mr. Levy resigned as Vice President of the Company effective September 9,
2000.
8
COMPARISON OF FIVE-YEAR CUMULATIVE TOTAL RETURN
The graph set forth below compares the cumulative total shareholder return
on the Company's Common Stock for the period commencing September 25, 1995 and
ending September 30, 2000 against the cumulative total return on the NASDAQ
Market Index and a peer group comprised of those public companies whose business
activities fall within the same standard industrial classification code as the
Company. This graph assumes a $100 investment in the Company's Common Stock and
in each index on September 25, 1995 and that all dividends paid by companies
included in each index were reinvested.
[PERFORMANCE GRAPH]
9/25/95 9/27/96 9/26/97 10/2/98 10/1/99 9/30/00
------- ------- ------- ------- ------- -------
Ark Restaurants Corp....................... 100.00 97.36 115.79 103.95 105.26 96.72
Market Index -- Nasdaq Stock
Market (US Companies).................... 100.00 116.75 158.69 164.91 266.79 364.95
Peer Index -- (SIC Code 5812 --
Eating and drinking places).............. 100.00 115.98 123.39 128.37 166.21 127.97
The foregoing graph shall not be deemed to be incorporated by reference into
any filing of the Company under the Securities Act of 1933, as amended, or the
Securities Exchange Act of 1934, as amended, except to the extent that the
Company specifically incorporates such information by reference.
9
REPORT ON EXECUTIVE COMPENSATION
The Compensation Committee, consisting of Messrs. Bogen, Galin and Shack,
determines the compensation of the President and sets policies for and reviews
with the President the compensation awarded to the other principal executives.
The Company's current executive officers consist of the President, Messrs.
Pascal, Towers, Kuruc and Gordon. The three elements of their compensation have
been salary, bonus and stock options.
The President is the founder of the Company. He owns over 939,000 shares of
Company stock (including exercisable options), approximately 28% of the
outstanding shares. The Compensation Committee believes he is substantially
motivated, both by reason of stock ownership and commitment to the Company, to
act on behalf of all shareholders to optimize overall corporate performance.
Accordingly, the Compensation Committee has not considered it necessary to
specifically relate the President's compensation to corporate performance.
The President's annual salary was increased from $400,354 during fiscal 1998
to $429,023 in fiscal 1999 and $458,090 in fiscal 2000. Effective January 1,
2001, the President's annual salary was increased to $550,000. The President was
also paid a bonus of $80,190 in fiscal 1998 and $44,435 in fiscal 2000. He did
not receive a bonus for fiscal 1999. In April 1999, he received options to
purchase an additional 60,000 shares of Common Stock. The Compensation
Committee believes the compensation paid to the President to be comparable or
less than that generally paid to chief executive officers at comparable
companies.
The Compensation Committee relies extensively on the views of the President
in determining salaries paid to Messrs. Pascal, Towers, Kuruc, and Gordon. Their
salary levels are believed to be competitive with amounts paid to executives
with comparable qualifications, experience and responsibilities at companies of
comparable size and also reflect assessments of past performance and
expectations concerning future contributions to the Company and its business.
It is through the use of stock options that the Company has endeavored to
relate corporate performance and compensation of the other executives. The Board
believes that significant stock ownership is a major incentive in building
shareholder wealth and aligning the interests of employees and shareholders. In
January 1997, Messrs. Pascal, Towers and Kuruc each received options to purchase
17,500 shares of Common Stock, and Mr. Gordon received options to purchase
25,000 shares. In April 1999, Messrs. Pascal, Towers, Gordon and Kuruc, each
received options to purchase 15,000 shares of Common Stock.
Stock options are granted by the Company's Stock Option Committee consisting
of Messrs. Lewin and Galin. They consult with the Compensation Committee in
awarding options to the Company's executives. All options granted under the
Company's 1996 Stock Option Plan were granted at an exercise price equal to
market price on the date of grant.
Jay Galin Ernest Bogen Donald D. Shack
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Ernest Bogen is Chairman of the Board of the Company and formerly an
executive officer of the Company. Mr. Bogen is also an officer, director and 25%
shareholder of each of Easy Diners, Inc. and RSB Corp., each of which is a
Restaurant management company that operates a Restaurant in New York City. Mr.
Weinstein is also an officer, director and 25% shareholder of Easy Diners, Inc.
and RSB Corp. Donald D. Shack is a member of the firm of Shack & Siegel, P.C.,
general counsel to the Company.
10
PROPOSAL 2: RATIFICATION OF APPOINTMENT OF INDEPENDENT AUDITORS
It is proposed that shareholders ratify the appointment by the Board of
Deloitte & Touche LLP as independent auditors for the Company for the fiscal
year ending September 29, 2001. The Company expects representatives of Deloitte
& Touche LLP to be present at the Meeting and available to respond to
appropriate questions submitted by shareholders. Such representatives will also
be accorded an opportunity at such time to make such statements as they may
desire.
Approval by the shareholders of the appointment of independent auditors is
not required, but the Board deems it desirable to submit this matter to
shareholders. If holders of a majority of the outstanding shares of Common Stock
present and voting at the meeting do not approve the appointment of Deloitte &
Touche LLP, the selection of independent auditors will be reconsidered by the
Board.
The Board recommends that you vote FOR ratification of the appointment of
Deloitte & Touche LLP as independent auditors for the Company.
AUDIT COMMITTEE REPORT
The audit committee of the Board of Directors of the Company is composed of
three directors and operates under a written charter adopted by the Board of
Directors, attached as Appendix A. The Company's management is responsible for
its internal accounting controls and the financial reporting process. The
Company's independent accountants, Deloitte & Touche LLP, are responsible for
performing an independent audit of the Company's consolidated financial
statements in accordance with auditing standards generally accepted in the
United States and to issue a report thereon. The audit committee's
responsibility is to monitor and oversee these processes.
In keeping with that responsibility, the audit committee has reviewed and
discussed the Company's audited consolidated financial statements with
management. In addition, the audit committee has discussed with the Company's
independent accountants the matters required to be discussed by Statement on
Auditing Standards No. 61, 'Communications with Audit Committees.'
The audit committee has received the written disclosures and the letter from
the independent accountants required by Independence Standards Board Standard
No. 1, 'Independence Discussions with Audit Committees,' and has discussed with
the independent accountants their independence.
Based on the audit committee's discussions with management and the
independent accountants and the audit committee's review of the representations
of management and the report of the independent accountants, the audit committee
recommended to the Board of Directors that the audited consolidated financial
statements be included in the Company's Annual Report on Form 10-K for the year
ended September 30, 2000 for filing with the Securities and Exchange Commission.
This report is respectfully submitted by the audit committee of the Board of
Directors.
Bruce R. Lewin, Jay Galin and Donald D. Shack
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires
the Company's officers and directors, and persons who own more than ten percent
of a registered class of the Company's equity securities to file reports of
ownership and changes in ownership on Forms 3, 4 and 5 with the Securities and
Exchange Commission (the 'Commission') and the NASDAQ/National Market System.
Officers, directors and greater than ten percent stockholders are required by
the Commission's regulation to furnish the Company with copies of all Forms 3, 4
and 5 they file.
Based solely on the Company's review of the copies of such forms it has
received, the Company believes that all of its officers, directors and greater
than ten percent beneficial owners complied with all filing requirements
applicable to them with respect to transactions during fiscal 2000.
11
VOTING PROCEDURES
Pursuant to Commission rules, a designated blank space is provided on the
proxy card to withhold authority to vote for one or more nominees for director
and boxes are provided on the proxy card for shareholders to mark if they wish
to abstain on Proposal 2. Votes withheld in connection with the election of one
or more of the nominees for director will not be counted in determining the
votes cast and will have no effect on the vote. With respect to the tabulation
of votes cast on a specific proposal presented to shareholders at the Meeting,
abstentions will be considered as present and voting with respect to that
specific proposal, whereas broker non-votes will not be considered as present
and voting with respect to that specific proposal. Abstentions are not counted
in determining the votes cast with respect to the ratification of the selection
of independent auditors and will have no effect on the vote.
Under the rules of the National Association of Securities Dealers, brokers
who hold shares in street name for customers have the authority to vote on
certain items when they have not received instructions from beneficial owners.
Brokers that do not receive instructions are entitled to vote upon the election
of directors and the selection of independent auditors.
SHAREHOLDER PROPOSALS
As of the date of this proxy statement, the Board has not received notice
of, and does not intend to propose, any other matters for stockholder action.
However, if any other matters are properly brought before the meeting, it is
intended that the persons voting the accompanying proxy will vote the shares
represented by the proxy in accordance with their best judgment.
To be included in the Company's proxy statement and proxy relating to the
Company's 2002 Annual Meeting of Shareholders, shareholder proposals should be
received by the Company on or before October 15, 2001. If we do not receive
notice of a stockholder proposal to be acted upon at our 2002 Annual Meeting of
Shareholders on or before December 27, 2001, our proxy for that meeting may
confer discretionary authority to vote on any such proposal.
ANNUAL REPORT
The 2000 Annual Report of the Company, including financial statements, is
being mailed together with this Notice of Annual Meeting of Shareholders, Proxy
Statement and Proxy on February 9, 2000 to each shareholder of record.
OTHER MATTERS
As of the date of this Proxy Statement, the Board is not aware of any other
matters to be presented for action. However, if any other matters are properly
brought before the Meeting, it is intended that the persons voting the
accompanying proxy will vote the shares represented thereby in accordance with
their best judgment.
THE COMPANY WILL PROVIDE WITHOUT CHARGE A COPY OF THE COMPANY'S ANNUAL
REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 2000, INCLUDING
FINANCIAL STATEMENTS AND SCHEDULES THERETO, TO EACH OF THE COMPANY'S
SHAREHOLDERS OF RECORD ON FEBRUARY 6, 2001 AND EACH BENEFICIAL SHAREHOLDER ON
THAT DATE, UPON RECEIPT OF A WRITTEN REQUEST THEREFOR MAILED TO THE COMPANY'S
OFFICES, 85 FIFTH AVENUE, NEW YORK, NEW YORK 10003, ATTENTION: TREASURER.
REQUESTS FROM BENEFICIAL SHAREHOLDERS MUST SET FORTH A GOOD FAITH REPRESENTATION
AS TO SUCH OWNERSHIP ON THAT DATE.
IT IS IMPORTANT THAT THE ACCOMPANYING PROXY BE RETURNED PROMPTLY. THEREFORE,
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING IN PERSON, YOU ARE EARNESTLY
REQUESTED TO DATE, SIGN AND RETURN YOUR PROXY IN THE ENCLOSED ENVELOPE TO WHICH
NO POSTAGE NEED BE AFFIXED IF MAILED IN THE UNITED STATES.
12
MANNER AND EXPENSES OF SOLICITATION
The solicitation of proxies in the accompanying form is made by the Board
and all costs thereof will be borne by the Company. In addition to the
solicitation of proxies by the use of the mails, some of the officers, directors
and other employees of the Company may also solicit proxies personally or by
mail, telephone, or telegraph but they will not receive additional compensation
for such services. The Company may also retain the services of a professional
proxy solicitation firm to assist in the solicitation of proxies. Brokerage
firms, custodians, banks, trustees, nominees or other fiduciaries holding shares
of the Common Stock in their names will be requested by the Company to forward
proxy material to their principals and will be reimbursed for their reasonable
out-of-pocket expenses incurred in respect thereto.
ARK RESTAURANTS CORP.
New York, New York
February 9, 2001
13
APPENDIX A
CHARTER OF THE AUDIT COMMITTEE OF
THE BOARD OF DIRECTORS OF
ARK RESTAURANTS CORP.
This Audit Committee Charter ('Charter') has been adopted by the Board of
Directors (the 'Board') of Ark Restaurants Corp. (the 'Company'). The Audit
Committee of the Board (the 'Committee') shall review and reassess this Charter
annually and recommend any proposed changes to the Board for approval.
ROLE, INDEPENDENCE AND ORGANIZATION
The Committee assists the Board in fulfilling its responsibility for
oversight of the quality and integrity of the accounting, auditing, internal
control and financial reporting practices of the Company. It may also have such
other duties as may from time to time be assigned to it by the Board. The
membership of the Committee shall consist of at least three directors, who are
each free of any relationship that, in the opinion of the board, may interfere
with such member's individual exercise of independent judgment. Each Committee
member shall also meet the independence and financial literacy requirements for
serving on audit committees, and at least one member shall have accounting or
related financial management expertise, all as set forth in the applicable NASD
rules. The Committee shall maintain free and open communication with the
independent auditors, the internal auditors and Company management. In
discharging its oversight role, the Committee is empowered to investigate any
matter relating to the Company's accounting, auditing, internal control or
financial reporting practices brought to its attention, with full access to all
Company books, records, facilities and personnel. The Committee may retain
outside counsel, auditors or other advisors.
RESPONSIBILITIES
Although the Committee may wish to consider other duties from time to time,
the general recurring activities of the Committee in carrying out its oversight
role are described below. The Committee shall be responsible for:
1. Recommending to the Board the independent auditors to be retained (or
nominated for shareholder approval) to audit the financial statements of
the Company. Such auditors are ultimately accountable to the Board and the
Committee, as representatives of the shareholders.
2. Evaluating, together with the Board and management, the performance of the
independent auditors and, where appropriate, replacing such auditors.
3.
Obtaining annually from the independent auditors a formal written statement
describing all relationships between the auditors and the Company,
consistent with Independence Standards Board Standard No. 1. The Committee
shall actively engage in a dialogue with the independent auditors with
respect to any relationships that may impact the objectivity and
independence of the auditors and shall take, or recommend that the Board
take, appropriate actions to oversee and satisfy itself as to the auditors'
independence.
4. Reviewing the audited financial statements and discussing them with
management and the independent auditors. These discussions shall include
the matters required to be discussed under Statement of Auditing Standards
No. 61 and consideration of the quality of the Company's accounting
principles as applied in its financial reporting, including a review of
particularly sensitive accounting estimates, reserves and accruals,
judgmental areas, audit adjustments (whether or not recorded), and other
such inquiries as the Committee or the independent auditors shall deem
appropriate. Based on such review, the Committee shall make its
recommendation to the Board as to the inclusion of the Company's audited
financial statements in the Company's Annual Report on Form 10-K.
A-1
5. Issuing annually a report to be included in the Company's proxy statement
as required by the rules of the Securities and Exchange Commission.
6. Overseeing the relationship with the independent auditors, including
discussing with the auditors the nature and rigor of the audit process,
receiving and reviewing audit reports, and providing the auditors full
access to the Committee (and the Board) to report on any and all
appropriate matters.
7. Discussing with a representative of management and the independent
auditors: (1) the interim financial information contained in the Company's
Quarterly Report on Form 10-Q prior to its filing, (2) the earnings
announcement prior to its release (if practicable), and (3) the results of
the review of such information by the independent auditors. (These
discussions may be held with the Committee as a whole or with the Committee
chair, and may be in person or by telephone.)
8. Overseeing internal audit activities, including discussing with management
and the internal auditors the internal audit function's organization,
objectivity, responsibilities, plans, results, budget and staffing.
9. Discussing with management, the internal auditors and the independent
auditors the quality and adequacy of and compliance with the Company's
internal controls.
10. Discussing with management and/or the Company's general counsel any legal
matters (including the status of pending litigation) that may have a
material impact on the Company's financial statements, and any material
reports or inquiries from regulatory or governmental agencies.
A-2
APPENDIX B
ARK RESTAURANTS CORP.
PROXY SOLICITED BY THE BOARD OF DIRECTORS FOR
THE ANNUAL MEETING OF SHAREHOLDERS
MARCH 14, 2001
THE UNDERSIGNED, revoking all previous proxies, hereby appoints MICHAEL
WEINSTEIN, ROBERT TOWERS and DONALD D. SHACK, or any of them as attorneys,
agents and proxies with power of substitution, and with all powers the
undersigned would possess if personally present, to vote all shares of Common
Stock of ARK RESTAURANTS CORP. (the 'Company') which the undersigned is entitled
to vote at the Annual Meeting of Shareholders of the Company to be held on
Wednesday, March 14, 2001 at 10:00 A.M. local time at Bryant Park Grill, 25 West
40th Street, New York, New York, and at all adjournments thereof. The shares
represented by this Proxy will be voted as indicated below upon the following
matters, all more fully described in the Proxy Statement.
[ ] _____________________ __________
ACCOUNT NUMBER COMMON
(1) ELECTION OF A BOARD OF NINE DIRECTORS
WITHHOLD AUTHORITY
NOMINEE VOTE FOR TO VOTE FOR
------- -------- -----------
Ernest Bogen [ ] [ ]
Michael Weinstein [ ] [ ]
Vincent Pascal [ ] [ ]
Robert Towers [ ] [ ]
Andrew Kuruc [ ] [ ]
Donald D. Shack [ ] [ ]
Jay Galin [ ] [ ]
Paul Gordon [ ] [ ]
Bruce Lewin [ ] [ ]
(See reverse side)
(2) Ratification of the appointment of Deloitte & Touche LLP as independent
auditors for the 2001 fiscal year.
FOR [ ] AGAINST [ ] ABSTAIN [ ]
(3) In their discretion, the Proxies are authorized to vote upon such other
business as may properly come before the meeting.
THE SHARES REPRESENTED BY THIS PROXY WILL BE VOTED IN ACCORDANCE WITH THE
INSTRUCTIONS GIVEN. IF NO SUCH INSTRUCTIONS ARE GIVEN, THE SHARES REPRESENTED BY
THIS PROXY WILL BE VOTED IN FAVOR OF ELECTION OF THE NOMINEES FOR DIRECTORS
DESIGNATED BY THE BOARD OF DIRECTORS AND FOR ITEM 2.
Dated: __________________, 2001
_______________________________
SIGNATURE
NOTE: Please sign exactly as
your name or names appear
hereon. Joint owners should
each sign personally. When
signing as executor,
administrator, corporation,
officer, attorney, agent,
trustee or guardian, etc.,
please add your full title to
your signature.
NOTE: Please mark, date, sign and mail this proxy in the envelope enclosed for
this purpose. No postage is required for mailing in the United States.