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:
[X] Preliminary proxy statement
[ ] 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:
PRELIMINARY COPY
ARK RESTAURANTS CORP.
85 Fifth Avenue
New York, New York 10003
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NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
To Be Held on March 27, 2002
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 27, 2002 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 approve the adoption of certain proposed amendments to the
Company's Certificate of Incorporation;
(3) To ratify the appointment of Deloitte & Touche LLP as independent
auditors for the 2002 fiscal year; and
(4) 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 19, 2002 as the record date for the determination of shareholders
entitled to notice of, and to vote at, the meeting.
All shareholders are cordially invited to attend.
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 and Senior Vice President
New York, New York
February 22, 2002
ARK RESTAURANTS CORP.
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PROXY STATEMENT
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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 27, 2002 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, (ii) IN FAVOR of the approval of certain
proposed amendments to the Company's Certificate of Incorporation, and (iii) IN
FAVOR of the ratification of the appointment of Deloitte & Touche LLP as
independent auditors for the Company for the 2002 fiscal year. Election of
directors will be determined by a plurality of votes cast at the Meeting in
person or by proxy. Approval of the proposed amendments to the Certificate of
Incorporation will be determined by a majority of all outstanding shares
entitled to vote thereon at the Meeting. Ratification of the appointment of
Deloitte & Touche LLP and all other proposals to be considered at the Meeting
will be determined by a majority 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
will first be mailed to shareholders is on or about February 22, 2002. 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 19, 2002 will be entitled to notice of and to vote at the
Meeting. On that date 3,181,299 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 February 1, 2002,
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, (iii) the President and Chief Executive Officer and
the other four most highly compensated executive officers of the Company, and
(iv) all current executive officers and directors of the Company as a group:
Name and Address Amount and Nature of
of Beneficial Owner Beneficial Owneship (1) Percent of Class
------------------- ----------------------- ----------------
Michael Weinstein........................... 926,138(2) 28.6%
85 Fifth Avenue
New York, New York 10003
FMR Corp.................................... 295,000(3) 9.3%
82 Devonshire Street
Boston, Massachusetts 02109
Bruce R. Lewin ............................. 231,600 6.9%
1329A North Avenue
New Rochelle, New York 10804
Arthur Zankel .............................. 222,500(4) 6.9%
535 Madison Avenue
New York, New York 10022
Vincent Pascal ............................. 57,440(5) 1.8%
85 Fifth Avenue
New York, New York 10003
Robert Towers .............................. 53,100(6) 1.6%
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 ............................... 35,800(8) 1.1%
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 ................................ 15,000(10) Less than 1%
85 Fifth Avenue
New York, New York 10003
All directors and officers as a group
(nine persons)...................... 1,405,001(11) 43.3%
2
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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
30,000 shares issuable upon exercise of currently exercisable options
granted under the Company's 1996 Stock Option Plan or exercisable
within 60 days of the date of this Proxy Statement.
(3) Based upon information set forth in Schedule 13G filed by FMR Corp.
with the Securities and Exchange Commission on or about February 13,
2001. Fidelity Management & Research Company ("Fidelity"), a
wholly-owned subsidiary of FMR Corp., is the beneficial owner of
295,000 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 295,000 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 295,000 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 7,500 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.
(6) Includes 7,500 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.
(7) Includes 40,000 shares owned by Skylark Partners, a partnership of
which Mr. Shack is a general partner.
(8) Includes 7,500 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.
(9) Includes 7,320 shares owned by Mr. Bogen's spouse, as to which Mr.
Bogen disclaims beneficial ownership.
(10) Includes 7,500 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.
(11) Includes 60,000 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 Position with the Director
------------------------------------------ --------
Name Age Company Since
---- --- ------- -----
Ernest Bogen 70 Restaurant operations; Chairman of the Board of 1983
the Company
Michael Weinstein 58 President and Chief Executive Officer of the 1983
Company
Vincent Pascal 58 Senior Vice President and Secretary of the Company 1985
Robert Towers 54 Executive Vice President, Chief Operating Officer and 1987
Treasurer of the Company
Andrew Kuruc 44 Senior Vice President, Chief Financial Officer and 1989
Controller of the Company
Paul Gordon 50 Senior Vice President of the Company 1996
Donald D. Shack 73 Attorney, member of law firm of Shack Siegel Katz 1985
Flaherty & Goodman P.C., general counsel to the
Company
Jay Galin 65 Chief Executive Officer, G+G Retail, Inc. 1988
Bruce R. Lewin 54 Owner - Bruce R. Lewin Fine Art 2000
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Biographical Information
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. During the past five years, Mr. Bogen has been an officer,
director and 25% shareholder of Easy Diners, Inc., a restaurant management
company which operated a restaurant in New York City until January 31, 2002;
RSWB Corp. which operates a restaurant in New York City that it acquired in June
1997; and BSWR Corp. which operates a restaurant in New York City that it
acquired in April 1998. Mr. Bogen is also the owner of 24% of the membership
interests of each of Dockeast, LLC and Dockwest, LLC, each of which has signed
an agreement to purchase a restaurant in New York City. During the past five
years, Mr. Bogen has also 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 previously owned and sold a
restaurant in Boca Raton, Florida. Easy Diners, Inc., RSWB Corp., BSRS Corp.,
Dockeast, LLC, Dockwest, LLC and BSWR Corp. are not subsidiaries or affiliates
of the Company.
Michael Weinstein has been the President, Chief Executive Officer and a
director of the Company since its inception in January 1983. During the past
five years, Mr. Weinstein has been an officer, director and 25% shareholder of
Easy Diners, Inc., RSWB Corp. and BSWR Corp. (since April
4
1998). At the present time, Mr. Weinstein is a director and 25% shareholder of
these corporations. Mr. Weinstein is the owner of 24% of the membership
interests of each of Dockeast, LLC and Dockwest, LLC. Mr. Weinstein spends
substantially all of his business time on Company-related matters.
Vincent Pascal has been employed by the Company since November 1983 and
was elected Vice President, Assistant Secretary and a director of the Company in
October 1985. Mr. Pascal became Secretary of the Company in January 1994 and a
Senior Vice President in April 2001.
Robert Towers has been employed by the Company since November 1983 and
was elected Vice President, Treasurer and a director in March 1987. Mr. Towers
became an Executive Vice President and Chief Operating Officer in April 2001.
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. Mr. Kuruc became a Senior Vice
President and Chief Financial Officer in April 2001.
Paul Gordon has been employed by the Company since 1983 and was elected
as a director in November 1996 and a Senior Vice President in April 2001. Mr.
Gordon is the manager of the Company's Las Vegas operations. 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.
During the past five years, Mr. Shack has been a member of the law firm of Shack
Siegel Katz Flaherty & Goodman P.C., general counsel to the Company.
Jay Galin was elected a director of the Company in January 1988. Since
August 1998, Mr. Galin has been Chairman of the Board and Chief Executive
Officer 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 R. Lewin was elected a director of the Company in February 2000.
During the past five years, Mr. Lewin has been the owner of Bruce R. Lewin Fine
Art in New York. Since August 2001, Mr. Lewin has been the President and a
director of Continental Hosts, Ltd. Mr. Lewin was formerly a director of the
Bank of Great Neck (in New York), 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 or
executive officers of the Company.
Messrs. Galin, Lewin and Shack were each paid $5,000 in fiscal year
2001 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
5
are payable on demand. During fiscal 2001, the largest amount of indebtedness of
Mr. Weinstein outstanding at any one time was $717,681. As of January 24, 2002,
Mr. Weinstein was indebted to the Company in the amount of $795,000. During
fiscal 2001, the largest amount of indebtedness of Mr. Towers outstanding at any
one time was $432,293. As of January 24, 2002, Mr. Towers was indebted to the
Company in the amount of $432,293. During fiscal 2001, the largest amount of
indebtedness of Mr. Pascal outstanding at any one time was $198,299. As of
January 24, 2002, Mr. Pascal was indebted to the Company in the amount of
$198,299.
Meetings and Committees of the Board of Directors
Messrs. Galin and Lewin 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 fiscal 2001, the Stock Option Committee took
action by unanimous written consent of the members of the Committee on one
occasion.
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 NASD Rule 4200(a)(14). While Mr. Shack is not an independent director, within
the meaning of 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 was included as an
appendix to last year's proxy statement. The Audit Committee held five meetings
during fiscal 2001.
The Company does not have a Nominating Committee.
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 fiscal 2001.
During the Company's past fiscal year, the Board held two meetings and
took action on eight 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 Jay Galin
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 2001, 2000 and 1999 fiscal years, of those
persons who were, at September 29, 2001, (i) the President and Chief Executive
Officer of the Company and (ii) the other four most highly compensated executive
officers of the Company.
SUMMARY COMPENSATION TABLE
Long-Term
Annual Compensation Compensation
------------------- ------------
Options
Name and Principal Position Year Salary ($) Bonus ($) Awarded (#)
--------------------------- ---- ---------- --------- -----------
Michael Weinstein 2001 521,630 33,000 ---
President and Chief Executive Officer....... 2000 458,090 44,435 60,000
1999 429,023 --- ---
Vincent Pascal 2001 233,359 14,055 ---
Senior Vice President and Secretary......... 2000 230,943 22,099 ---
1999 216,354 --- 15,000
Robert Towers 2001 233,359 14,055 ---
Executive Vice President, Chief 2000 230,943 22,099 ---
Operating Officer and Treasurer............. 1999 220,217 --- 15,000
Andrew Kuruc 2001 182,316 10,983 ---
Senior Vice President, Chief 2000 180,455 17,270 ---
Financial Officer and Controller........... 1999 169,077 --- 15,000
Paul Gordon 2001 219,769 51,820 ---
Senior Vice President....................... 2000 176,947 81,361 ---
1999 163,866 75,698 15,000
7
OPTION GRANTS IN LAST FISCAL YEAR
No options to purchase the Company's Common Stock were granted in
fiscal year 2001 to the President and Chief Executive Officer of the Company and
the other four most highly compensated executive officers of the Company.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR
AND FISCAL-YEAR END OPTION VALUES
The table shown below sets forth certain information for the President
and Chief Executive Officer of the Company and the other four most highly
compensated executive officers of the Company (i) with respect to option
exercises during fiscal 2001 and (ii) at September 29, 2001, with respect to
unexercised options to purchase shares of the Company's Common Stock under the
Company's 1985 and 1996 Stock Option Plans.
Shares Number of Securities Value of Unexercised
Acquired On Value Underlying Unexercised In-The-Money Options at
Name Exercise (#) Realized ($) Options at Fiscal Year End (#) Fiscal Year-End ($)(1)
---- ----------- ------------ ------------------------------ ----------------------
Exercisable Unexercisable Exercisable Unexercisable
----------- ------------- ----------- -------------
Michael Weinstein.......... --- --- 80,000 30,000 --- ---
Vincent Pascal............. --- --- 25,000 7,500 --- ---
Robert Towers.............. --- --- 25,000 7,500 --- ---
Andrew Kuruc............... --- --- 25,000 7,500 --- ---
Paul Gordon................ --- --- 32,500 7,500 --- ---
(1) Based on the closing sale price of $7.14 per share on the
NASDAQ/National Market System of the Company's Common Stock on
September 28, 2001, no unexercised options were in-the-money.
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 27,
1996 and ending September 29, 2001 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 27, 1996 and that all dividends paid by
companies included in each index were reinvested.
[Performance Graph - omitted]
9/27/96 9/26/97 10/2/98 10/1/99 9/30/00 9/29/01
------- ------- ------- ------- ------- -------
Ark Restaurants Corp................. 100.00 118.92 106.76 108.11 99.33 77.22
Market Index - Nasdaq Stock
Market (US Companies).............. 100.00 135.92 141.25 228.51 312.59 128.07
Peer Index - (SIC Code 5812 -
Eating and drinking places.......... 100.00 106.38 110.68 143.31 110.33 113.45
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 and Chief Executive Officer of the
Company. He owns over 901,000 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 $429,023 in fiscal
1999 to $458,090 in fiscal 2000, and $521,630 in fiscal 2001. The President was
also paid a bonus of $44,435 in fiscal 2000, and $33,000 in fiscal 2001. He did
not receive a bonus for fiscal 1999. In April 1999, he received options to
purchase 60,000 shares of Common Stock, and an additional 99,000 shares in
December 2001. 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 executives other than
Mr. Weinstein. 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, all of which expired on January 2,
2002. In April 1999, Messrs. Pascal, Towers, Gordon and Kuruc, each received
options to purchase 15,000 shares of Common Stock. In December 2001, Messrs.
Towers and Pascal each received options to purchase 30,000 shares of Common
Stock, Mr. Gordon received options to purchase 32,000 shares and Mr. Kuruc
received options to purchase 25,000 shares.
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 the market price on the date of grant.
This report is respectfully submitted by the Compensation Committee of
the Board of Directors.
Jay Galin, Ernest Bogen and Donald D. Shack
10
Compensation Committee Interlocks and Insider Participation
No member of the Company's Compensation Committee or Stock Option
Committee is an employee or officer of the Company. Ernest Bogen is Chairman of
the Board of the Company and was formerly an executive officer of the Company.
Mr. Bogen is also an officer, director and 25% shareholder of each of Easy
Diners, Inc., BSWR Corp. and RSWB Corp. Mr. Weinstein is also a director and 25%
shareholder of each of Easy Diners, Inc., BSWR Corp. and RSWB Corp. Messrs.
Bogen and Weinstein are also 24% members of each of Dockeast, LLC and Dockwest,
LLC. Donald D. Shack is a member of the firm of Shack Siegel Katz Flaherty &
Goodman P.C., general counsel to the Company, to which the Company paid $488,957
in legal fees in calendar year 2001.
PROPOSAL 2: APPROVAL OF AMENDMENTS TO THE CERTIFICATE OF
INCORPORATION
Legislation amending the New York Business Corporation Law ("BCL")
became effective in 1998. The amendments to the BCL were intended to eliminate
arcane and burdensome requirements that were needlessly preventing New York
corporations from efficiently exploiting opportunities presented to them and
generally causing corporations to incorporate and reincorporate in other states,
particularly Delaware. However, certain of the BCL amendments require
corporations, such as the Company, as were in existence prior to amendment of
the BCL, to "opt-in" to these provisions by amending their certificates of
incorporation in order to take advantage of the BCL amendments. Accordingly, the
Board of Directors has approved amending the Certificate of Incorporation as
indicated in Appendix A. A brief summary of the proposed amendments to the
Certificate of Incorporation is set forth below.
1. The Company "opts in" to the amended provisions of Section 511 of
the BCL which permit distributions of any class or series of shares to the
holders of any other class or series.
2. The Company "opts in" to the amended provisions of Section 709 of
the BCL which permit the amendment of quorum and voting requirements set forth
in the Company's Certificate of Incorporation so long as such an amendment is
authorized by the holders of a majority (rather than two-thirds) of the
outstanding shares entitled to vote thereon.
3. The Company "opts in" to the amended provisions of Section 714 of
the BCL which permit the Board of Directors to authorize loans or guarantees to
directors of the Company so long as the Board of Directors determines that such
loans or guarantees are in the best interest of the Company.
4. The Company "opts in" to the amended provisions of Section 903 of
the BCL which permit adoption of a plan of merger or consolidation by the
holders of a majority (rather than two-thirds) of all of the outstanding shares
of the Company entitled to vote thereon.
5. The Company "opts in" to the amended provisions of Section 909 of
the BCL which permit the holders of a majority (rather than two-thirds) of the
outstanding shares entitled to vote thereon to approve a sale, lease, exchange
or other disposition of all of the assets of the Company.
6. The Company "opts in" to the amended provisions of Section 913 of
the BCL, which permit the holders of a majority (rather than two-thirds) of the
outstanding shares entitled to vote thereon to approve any plan for binding
share exchanges.
11
7. The Company "opts in" to the amended provisions of Section 1001 of
the BCL, which permit dissolution of the Company to be authorized at a meeting
of the shareholders by a majority (rather than two-thirds) of all of the
outstanding shares entitled to vote thereon.
These amendments will make governance of the Company more flexible and
make it easier for the Company to engage in the specified actions and
transactions. Five of the amendments approved by the Board of Directors change
shareholder voting requirements for approval of certain transactions from
two-thirds to a majority of outstanding shares. One amendment permits the Board
of Directors to approve loans and guarantees to directors of the Company without
shareholder approval if such loans are deemed to be in the best interest of the
Company, while another amendment permits the Board of Directors to permit
distribution of any class or series of shares to holders of any other class or
series.
The amendments to the Company's Certificate of Incorporation are
subject to approval by the affirmative vote of the holders of a majority of all
outstanding shares of Common Stock entitled to vote at the Annual Meeting, with
each share of Common Stock having one vote. If the above amendments are
approved, the amended Certificate of Incorporation will become effective upon
the filing with the Secretary of State of the State of New York of a Certificate
of Amendment to the Company's Certificate of Incorporation. Such a filing will
take place shortly after approval.
The Board recommends that the shareholders vote FOR the adoption of the
amendments to the Certificate of Incorporation.
PROPOSAL 3: 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 28, 2002. 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.
Independent Auditors' Fees
Audit Fees
The aggregate fees billed by Deloitte & Touche LLP for professional
services rendered for the audit of the Company's annual financial statements and
the reviews of the financial statements included in the Company's Forms 10-Q for
the fiscal year ended September 29, 2001 were $127,000.
12
Financial Information Systems Design and Implementation Fees
Deloitte & Touche LLP rendered no professional services to the Company
in connection with the design or implementation of financial information systems
during the fiscal year ended September 29, 2001.
All Other Fees
During the fiscal year ended September 29, 2001, the aggregate fees
billed by Deloitte & Touche LLP for all other services rendered to the Company,
other than the services described under "Audit Fees" above, were $127,500.
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 to last year's proxy statement. 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. The Audit
Committee has considered whether the independent accountants' provision of
non-audit services is compatible with maintaining the accountants' 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 29, 2001 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
13
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 regulations 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 2001.
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. 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. Abstentions and broker non-votes will have the
effect of a negative vote on the proposal to amend the Company's Certificate of
Incorporation (Proposal 2). With respect to the tabulation of votes cast on the
selection of independent auditors (Proposal 3), abstentions will not be
considered as present and voting with respect to that specific proposal.
Under the rules of the National Association of Securities Dealers
(NASD), 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, the selection of independent auditors and other
routine matters. With respect to other matters, such as the approval of the
proposed amendments to the Company's Certificate of Incorporation, brokers do
not have authority under NASD rules to vote on their own initiative unless they
have received instructions from beneficial owners. This is commonly referred to
as a "broker non-vote."
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 2003 Annual Meeting of Shareholders, shareholder proposals should
be received by the Company on or before October 15, 2002. If we do not receive
notice of a stockholder proposal to be acted upon at our 2003 Annual Meeting of
Shareholders on or before December 27, 2002, our proxy for that meeting may
confer discretionary authority to vote on any such proposal.
ANNUAL REPORT
The 2001 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 or about February 22, 2002 to each shareholder of
record.
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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 29, 2001, INCLUDING
FINANCIAL STATEMENTS AND SCHEDULES THERETO, TO EACH OF THE COMPANY'S
SHAREHOLDERS OF RECORD ON FEBRUARY 19, 2002 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.
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.
By Order of the Board of Directors
Vincent Pascal,
Secretary and Senior Vice President
New York, New York
February 22, 2002
15
Appendix A
PROPOSED AMENDMENTS TO THE
CERTIFICATE OF INCORPORATION
OF
ARK RESTAURANTS CORP.
8. The Board of Directors is authorized to make distributions of shares
of any class or series of the Corporation pursuant to Section 511 of the BCL to
holders of the same or any other class or series of shares, whether or not any
shares of such class remain outstanding.
9. Any amendment hereto which changes or strikes out the quorum, voting
or other provisions permitted by BCL Section 709 shall be authorized at a
meeting of shareholders by a majority of the votes of all outstanding shares
entitled to vote thereon.
10. The Corporation may lend money to or guarantee the obligation of a
director of the Corporation if the Board of Directors determines that the loan
or guarantee benefits the Corporation and either approves the specific loan or
guarantee or a general plan authorizing loans or guarantees.
11. Any plan of merger or consolidation adopted by the Board of
Directors of the Corporation pursuant to Section 903 of the BCL shall be adopted
at a meeting of shareholders by the holders of a majority of all outstanding
shares entitled to vote thereon.
12. A sale, lease, exchange or other disposition of all or
substantially all of the assets of the Corporation pursuant to Section 909 of
the BCL shall be approved at a meeting of shareholders by a majority of the
votes of all outstanding shares entitled to vote thereon.
13. Any plan for binding share exchanges pursuant to Section 913 of the
BCL shall be adopted at a meeting of shareholders by the holders of a majority
of the votes of all outstanding shares entitled to vote thereon.
14. Any dissolution of the Corporation shall be authorized at a meeting
of the shareholders by a majority of the votes of all outstanding shares
entitled to vote thereon.
16
Appendix 1
ARK RESTAURANTS CORP.
Proxy Solicited by the Board of Directors
for the Annual Meeting of Shareholders
March 27, 2002
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 27, 2002 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
NOMINEE VOTE FOR AUTHORITY TO VOTE FOR
------- -------- ---------------------
Ernest Bogen [ ] [ ]
Michael Weinstein [ ] [ ]
Vincent Pascal [ ] [ ]
Robert Towers [ ] [ ]
Andrew Kuruc [ ] [ ]
Donald D. Shack [ ] [ ]
Jay Galin [ ] [ ]
Paul Gordon [ ] [ ]
Bruce R. Lewin [ ] [ ]
(See reverse side)
17
(2) Approval of the adoption of proposed amendments to the Certificate of
Incorporation of the Company.
FOR [ ] AGAINST [ ] ABSTAIN [ ]
(3) Ratification of the appointment of Deloitte & Touche LLP as independent
auditors for the 2002 fiscal year.
FOR [ ] AGAINST [ ] ABSTAIN [ ]
(4) 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 ITEMS 2 and 3.
Dated: 2002
-----------,
--------------------------
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 COMPLETE, DATE, SIGN AND MAIL THIS PROXY IN THE ENVELOPE ENCLOSED
FOR THIS PURPOSE. NO POSTAGE IS REQUIRED FOR MAILING IN THE UNITED STATES.
18