<PAGE>
<PAGE>
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-11(c) or Rule 14a-12
ARK RESTAURANTS CORP.
- --------------------------------------------------------------------------------
(Name of Registrant as Specified in Its Charter)
ARK RESTAURANTS CORP.
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement)
Payment of filing fee (Check the appropriate box):
[X] $125 per Exchange Act Rule 0-11(c)(1)(ii), 14a-6(i)(1), or 14a-6(i)(2).
[ ] $500 per each party to the controversy pursuant to Exchange Act Rule
14a-6(i)(3).
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
- --------------------------------------------------------------------------------
(2) Aggregate number of securities to which transactions applies:
- --------------------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11:
- --------------------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
[ ] 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:
- --------------------------------------------------------------------------------
(2) Form, schedule or registration statement no.:
- --------------------------------------------------------------------------------
(3) Filing party:
- --------------------------------------------------------------------------------
(4) Date filed:
<PAGE>
<PAGE>
ARK RESTAURANTS CORP.
85 Fifth Avenue
New York, New York 10003
--------------
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
March 19, 1996
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 19, 1996 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 seven directors;
(2) To approve the Ark Restaurants Corp. 1996 Stock Option Plan;
(3) To ratify the appointment of Deloitte & Touche LLP as
independent auditors for the 1996 fiscal year;
(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 8,
1996 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, 1996
<PAGE>
<PAGE>
ARK RESTAURANTS CORP.
---------------------
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 19, 1996 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 adoption of the Company's
1996 Stock Option Plan; and (iii) IN FAVOR of the ratification of the
appointment of Deloitte & Touche LLP as independent auditors for the Company for
the 1996 fiscal year. Election of directors is by a plurality of votes cast at
the Meeting in person or by proxy. Approval of the Company's 1996 Stock Option
Plan requires the affirmative vote of the holders of a majority 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, 1996. 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 of February 8, 1996 will be entitled to notice of and to vote at the
Meeting. On that date 3,241,045 shares of Common Stock were issued and
outstanding. Each outstanding share of Common Stock entitles the holder thereof
to one vote.
1
<PAGE>
<PAGE>
SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information at February 8, 1996
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:
<TABLE>
<CAPTION>
Name and Address Amount and Nature of
of Beneficial Owner Beneficial Ownership(1) Percent of Class
- ------------------- ----------------------- ----------------
<S> <C> <C>
Michael Weinstein.......... 1,023,988(2) 31.5%
85 Fifth Avenue
New York, New York 10003
FMR Corp. ................. 225,100(3) 6.9%
82 Devonshire Street
Boston, Massachusetts 02109
Bruce R. Lewin ............ 162,000(4) 5.0%
c/o Lewin Art, Inc. .......
150 East 69th Street
New York, New York 10021
Vincent Pascal ............ 94,680(5) 2.5%
85 Fifth Avenue
New York, New York 10003
Robert Towers ............. 65,650(6) 1.9%
85 Fifth Avenue
New York, New York 10003
Donald D. Shack ........... 52,603(7) 1.4%
530 Fifth Avenue
New York, New York 10036
Andrew Kuruc ............. 28,375(8) Less than 1%
85 Fifth Avenue
New York, New York 10003
Jay Galin ................. 26,000(9) Less than 1%
520 Eighth Avenue
New York, New York 10018
Ernest Bogen .............. 17,320(10) Less than 1%
85 Fifth Avenue
New York, New York 10003
All directors and officers as a
group (seven persons)....... 1,308,616(11) 39.0%
</TABLE>
(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 33,500 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, 12,000
shares owned by Mr. Weinstein's spouse as custodian for their children
under the Uniform Gifts to
-2-
<PAGE>
<PAGE>
Minors Act, and 3,250 shares issuable upon exercise of currently
exercisable options granted under the Company's 1985 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 13, 1995,
Fidelity Management & Research Company ("Fidelity"), a wholly-owned
subsidiary of FMR Corp., is the beneficial owner of 225,100 shares or
6.9% of the Common Stock of the Company as a result of acting as
investment adviser to several investment companies. The ownership of one
investment company, Fidelity Low Priced Stock Fund, amounted to 225,100
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 225,100 shares.
(4) Based upon information set forth in a Schedule 13D filed by Mr. Lewin
with the Securities and Exchange Commission on or about January 7, 1991.
(5) Includes 13,250 shares issuable upon exercise of currently exercisable
stock options granted under the Company's 1985 Stock Option Plan.
(6) Includes 3,250 shares issuable upon exercise of currently exercisable
stock options granted under the Company's 1985 Stock Option Plan.
(7) Includes 7,500 shares issuable upon exercise of currently exercisable
stock options granted under the Company's 1985 Stock Option Plan and
40,000 shares owned by Skylark Partners, a partnership of which Mr. Shack
is a general partner.
(8) Includes 9,375 shares issuable upon exercise of currently exercisable
stock options granted under the Company's 1985 Stock Option Plan.
(9) Includes 7,500 shares issuable upon exercise of currently exercisable
stock options granted under the Company's 1985 Stock Option Plan.
(10) Includes 7,320 owned by Mr. Bogen's spouse, as to which Mr. Bogen
disclaims beneficial ownership.
(11) Includes 44,125 shares issuable upon exercise of currently exercisable
stock options granted under the Company's 1985 Stock Option Plan.
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-
<PAGE>
<PAGE>
PROPOSAL 1: ELECTION OF DIRECTORS
A board of seven 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.
<TABLE>
<CAPTION>
Principal Occupation and Director
Name Age Position with the Company Since
<S> <C> <C> <C>
Ernest Bogen(1) 64 Chairman of the Board of the Company 1983
Michael Weinstein(2) 52 President of the Company 1983
Vincent Pascal(3) 52 Vice President and Secretary of the Company 1985
Robert Towers(4) 48 Vice President and Treasurer of the Company 1987
Andrew Kuruc(5) 38 Vice President and Controller of the Company 1989
Donald D. Shack(7) 67 Attorney, member of law firm of Shack & Siegel, 1985
P.C., general counsel to the Company
Jay Galin(8) 59 President, G. & G. Shops, Inc. 1988
</TABLE>
- -------
(1) 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. Since 1976, Mr.
Bogen has been an officer, director and shareholder of Teacher's
Restaurant Limited, which owns and operates another restaurant in New
York. For the past four years, Mr. Bogen has also been the majority owner
of Compass Cafe, Inc., the owner and operator of a restaurant and market
in South Miami Beach, Florida. Since October 1994 and October 1995,
respectively, Mr. Bogen has been the majority owner of Palace Grill, Inc.
and Washington Tavern, Inc. each of which owns and operates a restaurant
in Miami Beach, Florida.
(2) 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 and a
director and shareholder of Teacher's Restaurant Limited since 1976.
Mr. Weinstein spends substantially all of his business time on Company-
related matters.
(3) 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.
(4) Robert Towers has been employed by the Company since November 1983 and
was elected Vice President, Treasurer and a director in March 1987.
-4-
<PAGE>
<PAGE>
(5) 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.
(6) 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, 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.
(7) Jay Galin was elected a director of the Company in January 1988. For more
than the past five years, Mr. Galin has been President of G. & G. Shops,
Inc., a chain of retail clothing stores.
------------------------------
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 and Shack, the Company's non-employee directors, were
each paid $5,000 in fiscal year 1995 for their services to the Company as
directors.
The Company made loans to Robert Towers and Vincent Pascal, which loans
were made in large part in connection with the exercise of stock options as
provided under the Company's 1985 Stock Option Plan. All of the loans bear
interest at the prime rate in effect from time to time. The loans which were not
made in connection with the exercise of stock options ($19,314 in the case of
Mr. Towers and $22,860 in the case of Mr. Pascal) are due and payable on or
before June 30, 1996; the remaining loans are payable on demand. During fiscal
1995, the largest amount of indebtedness of Mr. Towers outstanding at any one
time was $112,330. As of January 24, 1996, Mr. Towers was indebted to the
Company in the amount of $254,600. During fiscal 1995, the largest amount of
indebtedness of Mr. Pascal outstanding at any one time was $53,673. As of
January 24, 1996, Mr. Pascal was indebted to the Company in the amount of
$103,655.
Meetings and Committees of the Board of Directors
Messrs. Shack and Bogen currently serve as members of the Stock Option
Committee of the Board. The Stock Option Committee administers the Plan. The
Stock Option Committee took action by unanimous written consent one time during
the past fiscal year.
Messrs. Galin 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 the Company's accounting
policies. The Audit Committee did not meet during the past fiscal year.
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
-5-
<PAGE>
<PAGE>
recommendations on compensation for other executive officers of the Company. The
Compensation Committee held one meeting during the past fiscal year.
The Company does not now, and did not during the past fiscal year, have
a Nominating Committee.
During the Company's past fiscal year, the Board held three meetings.
Each member of the Board attended all meetings of the Board and committees on
which he served except for Ernest Bogen who did not attend two of the Board
meetings.
-6-
<PAGE>
<PAGE>
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 1995, 1994 and 1993 fiscal years, of those persons who
were, at September 30, 1995, (i) President and Chief Executive Officer of the
Company and (ii) the other four most highly compensated executive officers of
the Company.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Annual Long-Term
Compensation Compensation
Name and Principal Position Year Salary ($) Options Awarded (#)
--------------------------- ---- ---------- -------------------
<S> <C> <C> <C>
Michael Weinstein............................................... 1995 316,950 13,000(1)
President and Chief Executive Officer 1994 316,950 ---
1993 302,236 ---
Vincent Pascal .............................................. 1995 163,994 13,000(1)
Vice President and Secretary 1994 149,400 ---
1993 140,506 ---
Robert Towers.................................................... 1995 154,900 13,000(1)
Vice President and Treasurer 1994 154,900 ---
1993 147,621 ---
Andrew Kuruc.................................................... 1995 140,000 7,500(1)
Vice President and Controller 1994 140,000 ---
1993 123,310 ---
Jane Fincke Ellis............................................... 1995 160,000 ---
Managing Director of Marketing and Development 1994 160,000 ---
1993 --- ---
</TABLE>
- -----------------------------
(1) Such option was granted on October 20, 1994 pursuant to the Company's
1985 Stock Option Plan.
-7-
<PAGE>
<PAGE>
The table shown below sets forth certain information at September 30, 1995 with
respect to options to purchase the Company's Common Stock granted in fiscal year
1995 under the Company's 1985 Stock Option Plan for the President and Chief
Executive Officer of the Company and the other four most highly compensated
executive officers during the past fiscal year.
OPTION GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
Potential Realizable Value at
Assumed Annual Rates of Stock
Price Appreciation for
Individual Grants Option Term
- ---------------------------------------------------------------------------------- ----------------------------
Percent of Total
Options Granted
to Employees in Exercise
Options Fiscal Price Expiration
Name Granted (#) 1995 ($/Share) Date 5% ($) 10% ($)
------ ------------- ----- --------- ------ -------- --------
<S> <C> <C> <C> <C> <C> <C>
Michael Weinstein 13,000 16.0% 8.00 10/20/1999 65,405 165,749
Vincent Pascal 13,000 16.0% 8.00 10/20/1999 65,405 165,749
Robert Towers 13,000 16.0% 8.00 10/20/1999 65,405 165,749
Andrew Kuruc 7,500 9.3% 8.00 10/20/1999 37,734 95,624
Jane Fincke Ellis 5,000 6.2% 8.00 10/20/1999 ---- ----
(1)
</TABLE>
- -------------------
(1) The Options terminated as a result of change in the optionee's employment
status with the Company.
-8-
<PAGE>
<PAGE>
The table shown below sets forth certain information at
September 30, 1995 with respect to unexercised options to purchase shares of the
Company's Common Stock under the Company's Stock Option Plan for the President
and Chief Executive Officer of the Company and the other four most highly
compensated executive officers of the Company during the past fiscal year.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR
AND FISCAL YEAR END OPTION VALUES
<TABLE>
<CAPTION>
Shares Number of Unexercised Value of Unexercised in-the-
Acquired on Value Options at Fiscal Money Options at Fiscal
Name Exercise (#) Realized ($) Year-End (#)(1) Year-End ($)(2)
---- ------------ ------------ --------------- ---------------
<S> <C> <C> <C> <C>
Michael Weinstein................ None --- 0 0
Vincent Pascal................... 12,900 91,913 30,000 300,000
Robert Towers ................... 22,400 159,600 30,000 300,000
Andrew Kuruc..................... 5,000 35,000 7,500 75,000
Jane Fincke Ellis................ None --- 0 0
</TABLE>
- -----------------------------
(1) All of the options reflected in the foregoing table are immediately
exercisable.
(2) Based on the closing sale price on the NASDAQ/National Market System
of the Company's Common Stock on September 29, 1995.
-9-
<PAGE>
<PAGE>
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 29,
1990 and ending September 30, 1995 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 29, 1990 and that all dividends paid
by companies included in each index were reinvested.
COMPARISON OF CUMULATIVE TOTAL RETURN
OF COMPANY, INDUSTRY INDEX AND BROAD MARKET
[PERFORMANCE GRAPH]
----------------FISCAL YEAR ENDING------------
1990 1991 1992 1993 1994 1995
ARK RESTAURANTS CP 100 213.33 320.00 500.00 400.00 533.33
INDUSTRY INDEX 100 140.32 174.47 209.18 198.77 246.68
BROAD STREET 100 134.19 131.96 171.62 181.61 220.50
-10-
<PAGE>
<PAGE>
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 and Kuruc. The two elements of their compensation have
been salary and stock options.
The President is the founder of the Company. He owns over 1,020,000
shares of Company stock, almost 32% of the outstanding shares. The Compensation
Committee believes he is very 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 $302,236 to $316,950
during fiscal 1994 and was unchanged in 1995. 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. In
1987, he received options to purchase 40,000 shares of Common Stock, and in
October 1994, he received options to purchase an additional 13,000 shares of
Common Stock. He has received no other options.
The Compensation Committee relies extensively on the views of the
President in determining salaries paid to Messrs. Pascal, Towers and Kuruc.
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 October 1994, Mr. Towers and Mr. Pascal each
received options to purchase 13,000 shares of Common Stock and Mr. Kuruc
received options to purchase 7,500 shares of Common Stock.
Stock options are granted by the Company's Stock Option Committee
consisting of Messrs. Shack and Bogen. They consult with the Compensation
Committee in awarding options to the Company's executives. All options granted
under the 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. Donald D. Shack is a member of the firm of
Shack & Siegel, P.C., general counsel to the Company.
-11-
<PAGE>
<PAGE>
PROPOSAL 2: ADOPTION OF THE COMPANY'S 1996 STOCK OPTION PLAN
The Company's 1985 Stock Option Plan, by its terms, expired on
September 30, 1995. Accordingly, in order to provide the Company the ability to
issue additional options, the Board adopted the 1996 Stock Option Plan (the
"1996 Plan") effective January 10, 1996, subject to approval by the Company's
stockholders, pursuant to which the Company may issue options to acquire up to
135,000 shares of its Common Stock. The 1996 Plan is intended to encourage
stock ownership by directors, officers, employees, independent contractors
and advisors of the Company and its subsidiaries and thereby enhance their
proprietary interest in the Company.
A summary of the signification provisions of the Plan is set forth
below.
Administration of the 1996 Plan
The 1996 Plan is administered by a committee (the "Committee")
consisting of two or more persons who are appointed by, and serve at the
pleasure of, the Board and each of whom is a "disinterested person" as that term
is defined in Rule 16b of the General Rules and Regulations under the Securities
Exchange Act of 1934. Subject to the express provisions of the 1996 Plan, the
Committee has the sole discretion to determine to whom among those eligible, and
the time or times at which, options will be granted, the number of shares to be
subject to each option and the manner in and price at which options may be
exercised. In making such determinations, the Committee may take into account
the nature and period of service of eligible employees, their level of
compensation, their past, present and potential contributions to the Company and
such other factors as the Committee in its discretion deems relevant. Options
are designated at the time of grant as either "incentive stock options" intended
to qualify under Section 422 of the Internal Revenue Code (the "Code") or
"non-qualified options" which do not so qualify.
The Committee may amend, suspend or terminate the 1996 Plan at any
time, except that no amendment may be adopted without the approval of
shareholders which would (i) increase the maximum number of shares which may be
issued pursuant to the exercise of options granted under the Plan; (ii) change
the eligibility requirements for participation in the 1996 Plan; (iii) permit
the grant of any incentive stock option under the 1996 Plan with an option price
of less than 100% of the fair market value of the shares at the time such
incentive stock option is granted; or (iv) extend the term of any incentive
stock options or the period during which any incentive stock options may be
granted under the 1996 Plan.
Unless the 1996 Plan is terminated earlier by the Board, the 1996 Plan
will terminate on January 9, 2006.
Shares Subject to the Plan
Subject to adjustments resulting from changes in capitalization and
assuming approval of this Proposal by shareholders, no more than 135,000 shares
of Common Stock may be issued pursuant to the exercise of options granted under
the 1996 Plan. If any option expires or terminates for any reason, without
having been exercised in full, the unpurchased shares subject to such option
will be available again for purposes of the 1996 Plan.
-12-
<PAGE>
<PAGE>
Under certain circumstances involving a change in the number of shares
of Common Stock without the receipt by the Company of any consideration
therefor, such as a stock split, stock consolidation or payment of a stock
dividend, the class and aggregate number of shares of Common Stock in respect of
which options may be granted under the 1996 Plan, the class and number of shares
subject to each outstanding option and the option price per share will be
proportionately adjusted. In addition, if the Company is involved in a merger,
consolidation, dissolution or liquidation, the options granted under the 1996
Plan will be adjusted or, under certain conditions, will terminate, subject to
the right of the option holder to exercise his option or a comparable option
substituted at the discretion of the Company prior to such event. An option may
not be transferred other than by will or by the laws of descent and
distribution, and during the lifetime of the option holder may be exercised only
by such holder.
Participation
The Committee is authorized to grant incentive stock options from time
to time to such employees of the Company or its subsidiaries, as the Committee,
in its sole discretion, may determine. Employees and directors of the Company or
its subsidiaries and independent contractors providing services to the Company
or its subsidiaries are eligible to receive non-qualified options under the 1996
Plan. Members of the Committee are not eligible to receive options under the
1996 Plan during their term of service on the Committee and for a period of a
year thereafter.
Option Price
The exercise price of each option is determined by the Committee, but
may not, in the case of incentive stock options, be less than 100% of the fair
market value of the shares of Common Stock covered by the option on the date the
option is granted. In the case of non-qualified options, the option price per
share may be less than, equal to or greater than the fair market value of the
shares of Common Stock covered by the option on the date the option is granted.
If an incentive stock option is to be granted to an employee who owns over 10%
of the total combined voting power of all classes of the Company's stock, then
the exercise price may not be less than 110% of the fair market value of the
Common Stock covered by the incentive stock option on the date the option is
granted.
Acquisition of Shares
In order to assist an optionee in the acquisition of shares of Common
Stock pursuant to the exercise of an option granted under the 1996 Plan, the
Committee may, if this Proposal is approved by shareholders, authorize (i) the
extension of a loan to the optionee by the Company, (ii) the payment by the
optionee of the purchase price of the Common Stock in installments, or (iii) the
guarantee by the Company of a loan obtained by the optionee from a third party.
Such loans, installment payments or guarantees may be authorized without
security and, in the case of incentive stock options, the rate of interest may
not be less than the higher of the prime rate of a commercial bank of recognized
standing or the rate of interest imputed under Section 483 of the Code.
Terms of Options
The Committee has the discretion to fix the term of each option granted
under the 1996 Plan, except that the maximum length of term of each option is 10
years, subject to earlier termination as provided in the
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1996 Plan (five years in the case of incentive stock options granted to an
employee who owns over 10% of the total combined voting power of all classes of
the Company's stock).
Federal Income Tax Consequences of Non-Qualified Options
An employee who is granted a non-qualified option under the 1996 Plan
will not realize any income for Federal income tax purposes on the grant of an
option. An option holder will realize ordinary income for Federal income tax
purposes on the exercise of an option, provided the shares are not then subject
to a substantial risk of forfeiture within the meaning of Section 83 of the Code
("Risk of Forfeiture"), in an amount equal to the excess, if any, of the fair
market value of the shares of Common Stock on the date of exercise over the
exercise price thereof. If the shares are subject to a Risk of Forfeiture on the
date of exercise, the option holder will realize ordinary income for the year in
which the shares cease to be subject to a Risk of Forfeiture in an amount equal
to the excess, if any, of the fair market value of the shares at the date they
cease to be subject to a Risk of Forfeiture over the exercise price, unless the
option holder shall have made a timely election under Section 83 of the Code to
include in his income for the year of exercise an amount equal to the excess of
the fair market value of the shares of Common Stock on the date of exercise over
the exercise price. The amount realized for tax purposes by an option holder by
reason of the exercise of a non-qualified option granted under the 1996 Plan is
subject to withholding by the Company and the Company is entitled to a deduction
in an amount equal to the income so realized by an option holder provided all
necessary withholding requirements under the Code are met.
Provided that an employee satisfies certain holding period requirements
provided by the Code, an employee will realize long-term capital gain or loss,
as the case may be, if the shares issued upon exercise of a non-qualified option
are disposed of more than one year after (i) the shares are transferred to the
employee or (ii) if the shares were subject to a Risk of Forfeiture on the date
of exercise and a valid election under Section 83 of the Code shall not have
been made, the date as of which the shares cease to be subject to a Risk of
Forfeiture. The amount recognized upon such disposition will be the difference
between the option holder's basis in such shares and the amount realized upon
such disposition. Generally, an option holder's basis in the shares will be
equal to the exercise price plus the amount of income recognized upon exercise
of the option.
Federal Income Tax Consequences of Incentive Stock Options
An incentive stock option holder who meets the eligibility requirements
of Section 422 of the Code will not realize income for Federal income tax
purposes, and the Company will not be entitled to a deduction, on either the
grant or the exercise of an incentive stock option. If the incentive stock
option holder does not dispose of the shares acquired within two years after the
date the incentive stock option was granted to him or within one year after the
transfer of the shares to him, (i) any proceeds realized on a sale of such
shares in excess of the option price will be treated as long-term capital gain
and (ii) the Company will not be entitled to any deduction for Federal income
tax purposes with respect to such shares.
If an incentive stock option holder disposes of shares during the
two-year or one-year periods referred to above (a "Disqualifying Disposition"),
the incentive stock option holder will not be entitled to the favorable tax
treatment afforded to incentive stock options under the Code. Instead, the
incentive stock option holder will realize ordinary income for Federal income
tax purposes in the year the Disqualifying Disposition is made, in an amount
equal to the excess, if any, of the fair market value of the shares of Common
Stock on the date of exercise over the exercise price.
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An incentive stock option holder generally will recognize a long-term
capital gain or loss, as the case may be, if the Disqualifying Disposition is
made more than one year after the shares are transferred to the incentive stock
option holder. The amount of any such gain or loss will be equal to the
difference between the amount realized on the Disqualifying Disposition and the
sum of (x) the exercise price and (y) the ordinary income realized by the
incentive stock option holder as the result of the Disqualifying Disposition.
The Company will be allowed in the taxable year of a Disqualifying
Disposition a deduction in the same amount as the ordinary income recognized by
the incentive stock option holder provided all necessary withholding
requirements are met.
Notwithstanding the foregoing, if the Disqualifying Disposition is made
in a transaction with respect to which a loss (if sustained) would be recognized
to the incentive stock option holder, then the amount of ordinary income
required to be recognized upon the Disqualifying Disposition will not exceed the
amount by which the amount realized from the disposition exceeds the exercise
price. Generally, a loss may be recognized if the transaction is not a "wash"
sale, a gift or a sale between certain persons or entities classified under the
Code as "related persons".
Alternative Minimum Tax
For purposes of computing the Federal alternative minimum tax with
respect to shares acquired pursuant to the exercise of incentive stock options,
the difference between the fair market value of the shares on the date of
exercise over the exercise price will be includible in alternative minimum
taxable income in the year of exercise if the shares are not subject to a Risk
of Forfeiture; if the shares are subject to a Risk of Forfeiture, the amount
includible in alternative minimum taxable income will be taken into account in
the year the Risk of Forfeiture ceases and will be the excess of the fair market
value of the shares at the date they cease to be subject to a Risk of Forfeiture
over the exercise price. The basis of the shares for alternative minimum tax
purposes, generally, will be an amount equal to the exercise price, increased by
the amount of the tax preference taken into account in computing the alternative
minimum taxable income. In general the alternative minimum tax is the excess of
24% of alternative minimum taxable income over the regular income tax, in each
case subject to various adjustments.
Deductions for Federal Income Tax Purposes
Pursuant to the Omnibus Budget Reconciliation Act of 1993, for fiscal
years beginning after January 1, 1994, the Company will not be able to deduct
compensation to certain employees to the extent compensation exceeds one million
dollars per tax year. Covered employees include the chief executive officer and
the four other highest paid senior executive officers of the Company for the tax
year. Certain performance-based compensation, including stock options, is exempt
provided that the stock options are granted by a committee of the Board which is
comprised solely of two or more outside directors, the plan under which the
options are granted is approved by stockholders, and the plan states the maximum
number of shares with respect to which options may be granted during a specified
period to any employee. The Company believes that compensation related to
options granted under the 1996 Plan will qualify for the exemption. Currently
the Company does not have any employees earning in excess of $1,000,000.
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Required Vote
The affirmative vote of holders of a majority of the shares of Common
Stock present, in person or by proxy, at the Annual Meeting is required to
approve the 1996 Plan pursuant to the following resolution:
"RESOLVED, that the Company's 1996 Stock Option Plan be
approved in the form annexed as Exhibit A to the Company's Proxy
Statement dated February 9, 1996."
The Board of Directors recommends that you vote FOR the ratification
and approval of the Ark Restaurants Corp. 1996 Stock Option Plan.
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, 1996. 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.
COMPLIANCE WITH SECTION 16(A) OF THE SECURITIES EXCHANGE ACT
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 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 1995.
VOTING PROCEDURES
Pursuant to Securities and Exchange 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 Proposals 2 and 3. Votes
withheld in
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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 in connection with the approval of the
1996 Stock Option Plan will have the effect of a negative vote. 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.
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SHAREHOLDER PROPOSALS
To be included in the Company's proxy statement and proxy relating to
the Company's 1997 Annual Meeting of Shareholders, shareholder proposals should
be received by the Company on or before October 13, 1996.
ANNUAL REPORT
The 1995 Annual Report of the Company, including financial statements,
is being mailed together with this Notice of Annual Meeting of Shareholders,
Proxy Statement and Proxy to each shareholder of record on February 8, 1996.
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, 1995, INCLUDING
FINANCIAL STATEMENTS AND SCHEDULES THERETO, TO EACH OF THE COMPANY'S
SHAREHOLDERS OF RECORD ON FEBRUARY 8, 1996 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. 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, 1996
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Exhibit A
ARK RESTAURANTS CORP.
1996 STOCK OPTION PLAN
1. Purposes
This Stock Option Plan (the "Plan") is intended to assist Ark
Restaurants Corp. (the "Company") in attracting, maintaining and developing a
strong management for the Company and its subsidiaries by encouraging ownership
of Shares by officers, directors and employees. Each option granted pursuant to
the Plan shall be designated at the time of grant as either an "incentive stock
option" or as a "nonqualified stock option."
2. Definitions
For the purposes of the Plan, unless the context otherwise requires,
the following definitions shall be applicable:
(a) "Board" or "Board of Directors" means the Company's Board of
Directors.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Director" means any person who is a member of the Board of
Directors of the Company whether or not such person is an Employee.
(d) "Employee" means an employee of the Company or of a
Subsidiary (including a director or officer who is also an Employee).
(e) "Employment" means the employment of an Employee by the
Company or a Subsidiary or the service of a Director as a director of the
Company.
(f) "Fair Market Value" of the Shares means the mean between the
closing bid and asked prices of publicly traded Shares as reported on the NASDAQ
system (or, if the Shares are listed on a national securities exchange, the
closing price on such exchange), or, if the Shares shall not then be regularly
quoted on the NASDAQ system (or on any national securities exchange), as
reported by any nationally recognized quotation service selected by the Company,
or as determined by the Committee (as hereinafter defined) or the Board in a
manner consistent with the provisions of the Code.
(g) "ISO" means an option intended to qualify under Section 422
of the Code.
(h) "NQO" means an option which does not qualify as an ISO.
(i) "Option Agreement" means a written agreement between the option
holder and the Company evidencing an option granted under the Plan, consistent
with the provisions of Section 6 of the Plan.
(j) "Shares" means shares of the Company's common stock, $.01 par
value, including authorized but unissued shares and shares which have been
previously issued and reacquired by the Company or a Subsidiary.
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(k) "Subsidiary" of the Company means and includes a "Subsidiary
Corporation," as that term is defined in Section 425(f) of the Code.
3. Administration
The Plan shall be administered by a committee (the "Committee")
consisting of not less than two persons appointed by the Board of Directors,
each of whom shall be a "disinterested person" as the term is defined in Rule
16b-3 of the General Rules and Regulations under the Securities Exchange Act of
1934. Subject to the express provisions of the Plan, the Committee shall have
authority to interpret and construe the Plan, to prescribe, amend and rescind
rules and regulations relating to it, to determine the terms and provisions of
the respective Option Agreements (which need not be identical) and to make all
other determinations necessary or advisable for the administration of the Plan.
Subject to the express provisions of the Plan, the Committee, in its sole
discretion, shall from time to time determine the persons from among those
eligible under the Plan to whom, and the time or times at which, options shall
be granted, the number of Shares to be subject to each option, whether an option
shall be designated an ISO or an NQO and the manner in and price at which such
option may be exercised. In making such determinations, the Committee may take
into account the nature and period of service rendered by the respective
optionees, their level of compensation, their past, present and potential
contributions to the Company and such other factors as the Committee shall in
its discretion deem relevant. However, nothing contained herein shall be deemed
to prevent the Committee, in the sound exercise of business judgment, from
canceling outstanding options and reissuing new options at a lower exercise
price in the event that the Fair Market Value per share of Common Stock at any
time prior to the date of exercise falls below the exercise price of options
granted pursuant to the Plan. Shares subject to any such canceled options shall
be immediately available for reissuance under the Plan. The determination of the
Committee with respect to any matter referred to in this Section 3 shall be
conclusive.
4. Eligibility for Participation
Any Employee or Director or an independent contractor providing
services to the Company or its Subsidiaries shall be eligible to receive options
granted under the Plan, except that (i) only Employees (including a director or
officer who is also an Employee) shall be eligible to receive ISOs, and (ii)
members of the Committee are not eligible to receive options under the Plan
during their term of service on the Committee and for a period of one year
thereafter.
5. Limitation on Shares Subject to the Plan
(a) Subject to adjustment as hereinafter provided, no more than 135,000
Shares may be issued pursuant to the exercise of options granted under the Plan.
If any option shall expire or terminate for any reason, without having been
exercised in full, the unpurchased Shares subject thereto shall again be
available for the purposes of the Plan.
(b) Subject to adjustment as hereinafter provided, (i) no Employee may
be granted ISOs to purchase more than an aggregate of 50,000 Shares under the
Plan, and (ii) no Employee may be granted options to purchase more than an
aggregate of 25,000 Shares during any period of 12 consecutive months.
6. Terms and Conditions of Options
Each option granted under the Plan shall be subject to all of the
applicable terms and conditions of the Plan and shall be evidenced by an Option
Agreement. The Option Agreement shall contain such terms and conditions not
inconsistent with the Plan as the Committee may deem appropriate, including,
among other things, when and to what extent the option is exercisable, the
number of Shares that may be purchased upon
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exercise of an option, the price at which each Share may be purchased pursuant
to the exercise of an option, the conditions to the exercise of any option and
the option holder's obligation to remain in the continuous employment with or
service to the Company. The provisions of Option Agreements need not be
identical. Without limiting the foregoing, each option granted under the Plan
shall be subject to the following terms and conditions:
(a) Except as provided in Subsection (i), the option price per Share
shall be determined by the Committee, but shall not, in the case of ISOs, be
less than 100% of the Fair Market Value of a Share on the date the option is
granted. In the case of NQOs, the option price per share may be less than, equal
to or greater than the Fair Market Value of a Share on the date of grant. The
Committee may modify the option price of outstanding options or cancel such
options and grant new options in lieu thereof at a new option price, provided
that in the case of ISOs the option price of such modified or new option may not
be less than 100% of the Fair Market Value of a Share on the date of such action
by the Committee.
(b) Each option shall expire ten years from the date of grant unless
the Committee, in its discretion, fixes a shorter term, subject to earlier
termination as provided herein.
(c) If an option holder dies while he is an Employee or a Director or
within three months after the termination of such option holder's Employment by
reason of retirement with the written consent of the Company or a Subsidiary,
such option may, to the extent that the option holder was entitled to exercise
such option on the date of his death, be exercised within one year after his
death by his personal representative or representatives or by the person or
persons to whom the option holder's rights under the option shall pass by will
or by the applicable laws of descent and distribution; provided, however, that
an option may not be exercised to any extent by anyone after its expiration.
(d) In the event that an option holder shall voluntarily retire or quit
his Employment without the written consent of the Company or a Subsidiary or if
the Company or a Subsidiary shall terminate the Employment of an option holder
for cause, the options held by such holder shall forthwith terminate. If an
option holder shall voluntarily retire or quit his Employment with the written
consent of the Company or a Subsidiary, or if the Employment of an option holder
shall have been terminated by the Company or a Subsidiary for reasons other than
cause, such option holder may (unless his option shall have previously expired
pursuant to the provisions hereof) exercise his option at any time prior to the
expiration of the original option period or the expiration of three months from
the termination of his Employment, whichever shall first occur, to the extent of
the number of Shares subject to such option which were purchasable by him on the
date of termination of his employment. Options granted under the Plan shall not
be affected by any change of employment so long as the option holder continues
to be an Employee or Director.
(e) Each option shall be nontransferable by the option holder otherwise
than by will or by the laws of descent and distribution and shall be exercisable
during the lifetime of the option holder solely by him.
(f) Payment of the option price shall be made to the Company at the
time the option is exercised either (i) in cash (including check, bank draft or
money order), or (ii) at the discretion of the Committee, by delivering Shares
already owned by the option holder and having a Fair Market Value on the date of
exercise equal to the option price of the option or a combination of such Shares
and cash, or (iii) by any other proper method specifically approved by the
Committee.
(g) In order to assist an optionee in the exercise of an option granted
under the Plan, the Committee or Board may, in its discretion, authorize, either
at the time of the grant of the option or thereafter (a) the extension of a loan
to the optionee by the Company, (b) the payment by optionee of the purchase
price
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of the Common Stock in installments, (c) the guarantee by the Company of a loan
obtained by the optionee from a third party or (d) make such other reasonable
arrangements to facilitate the exercise of options in accordance with applicable
law. The Committee or Board shall authorize the terms of any such loan,
installment payment arrangement or guarantee, including the interest rate
(which, in the case of incentive stock options, shall be not less than the
higher of (i) the "prime rate" as from time to time in effect of a commercial
bank or recognized standing, and (ii) the rate of interest from time to time
imputed under Section 483 of the Code) and terms of repayment thereof, and shall
cause the instrument evidencing any such option to be amended, if required, to
provide for any such extension of credit. Loans, installment payment
arrangements and guarantees may be authorized without security, and the maximum
amount of any such loan or guarantee shall be the purchase price of the Common
Stock being acquired, plus related interest payments.
(h) To the extent that the aggregate Fair Market Value (determined at
the time an ISO is granted) of the Shares with respect to which ISOs are
exercisable for the first time by an Employee during any calendar year under all
incentive stock option plans of the Company and its Subsidiaries exceeds
$100,000, such ISOs will be treated as NQOs. The foregoing rule shall be applied
by taking ISOs into account in the order in which they were granted. In the
event outstanding ISOs granted to an Employee become immediately exercisable
under Section 7(a) hereof, such ISOs will, to the extent the aggregate Fair
Market Value thereof exceeds $100,000, be treated as NQOs.
(i) An ISO may be granted to an Employee owning, or who is considered
as owning by applying the rules of ownership set forth in Section 424(d) of the
Code, over 10 percent of the total combined voting power of all classes of
capital stock of the Company or any Subsidiary if the option price of such ISO
equals or exceeds 110% of the Fair Market Value of a Share subject to the ISO
and such ISO shall expire not more than five years from the date of grant.
(j) Options may be terminated at any time by agreement between the
Company and the option holder.
(k) Nothing herein contained shall impose upon the Company the
obligation to continue the employment or other service of any option holder. The
rights of the Company to terminate the employment or service of an option holder
shall not be diminished or affected by reason of the granting of an option.
7. Adjustments Upon Changes in Capitalization
(a) New option rights may be substituted for the option rights granted
under the Plan, or the Company's duties as to options outstanding under the Plan
may be assumed, by a corporation other than the Company, or by a parent or
subsidiary of the Company or such corporation, in connection with any merger,
consolidation, acquisition, separation, reorganization, liquidation or like
occurrence in which the Company is involved. Notwithstanding the foregoing or
the provisions of Section 7(b) hereof, in the event such corporation, or parent
or subsidiary of the Company or such corporation, does not substitute new option
rights for, and substantially equivalent to, the option rights granted
hereunder, or assume the option rights granted hereunder, the option rights
granted hereunder shall terminate and thereupon become null and void (i) upon
dissolution or liquidation of the Company, or similar occurrence, (ii) upon any
merger, consolidation, acquisition, separation, reorganization, or similar
occurrence, where the Company will not be a surviving entity or (iii) upon a
transfer of substantially all of the assets of the Company or more than 80% of
the outstanding Shares; provided, however, that each option holder shall have
the right immediately prior to or concurrently with such dissolution,
liquidation, merger, consolidation, acquisition, separation,
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reorganization or similar occurrence, to exercise any unexpired option rights
granted hereunder whether or not then exercisable.
(b) The existence of outstanding options shall not affect in any way
the right or power of the Company or its shareholders to make or authorize any
or all adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business, or any merger or consolidation of
the Company, or any issuance of Common Stock or subscription rights thereto, or
any merger or consolidation of the Company, or any issuance of bonds,
debentures, preferred or prior preference stock ahead of or affecting the Shares
or the rights thereof, or the dissolution or liquidation of the Company, or any
sale or transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise;
provided, however, that if the outstanding Shares of the Company shall at any
time be changed or exchanged by declaration of a stock dividend, stock split,
combination of shares or recapitalization, the number and kind of shares subject
to the Plan or subject to any options theretofore granted, and the option
prices, shall be appropriately and equitably adjusted so as to maintain the
proportionate number of Shares without changing the aggregate option price.
(c) Adjustments under this Section 7 shall be made by the Committee,
whose determination as to what adjustment, if any, shall be made, and the extent
thereof, shall be final.
8. Privileges of Stock Ownership
No option holder shall be entitled to the privileges of stock ownership
as to any Shares not actually issued and delivered to him
9. Securities Regulation
(a) Each option shall be subject to the requirement that if at any time
the Board shall in its discretion determine that the listing, registration or
qualification of the Shares subject to such option upon any securities exchange
or under any Federal or state law, or the approval or consent of any
governmental regulatory body, is necessary or desirable in connection with the
issuance or purchase of Shares thereunder, such option may not be exercised in
whole or in part unless such listing, registration, qualification, approval or
consent shall have been effected or obtained free from any conditions not
reasonably acceptable to the Board.
(b) Unless at the time of the exercise of an option and the issuance of
the Shares thereby purchased by an option holder hereunder there shall be in
effect as to such Shares a Registration Statement under the Securities Act of
1933, as amended (the "Act"), and the rules and regulations of the Securities
and Exchange Commission, the option holder exercising such option shall deliver
to the Company at the time of exercise a certificate (i) acknowledging that the
Shares so acquired may be "restricted securities" within the meaning of Rule 144
promulgated under the Act, (ii) certifying that he is acquiring the Shares
issuable to him upon such exercise for the purpose of investment and not with a
view to their sale or distribution; and (iii) containing such option holder's
agreement that such Shares may not be sold or otherwise disposed of except in
accordance with applicable provisions of the Act. The Company shall not be
required to issue or deliver certificates for Shares until there shall have been
compliance with all applicable laws, rules and regulations, including the rules
and regulations of the Securities and Exchange Commission.
10. Amendment, Suspension and Termination of the Plan
The Committee may at any time amend, suspend or terminate the Plan,
provided that, except as set forth in Section 7 above, no amendment may be
adopted which would:
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(a) increase the maximum number of Shares which may be issued
pursuant to the exercise of options granted under the Plan;
(b) permit the grant of any ISO under the Plan with an option
price less than 100% of the Fair Market Value of the Shares at the time such ISO
is granted;
(c) change the provisions of Section 4; or
(d) extend the term of ISOs or the period during which ISO may be
granted under the Plan.
Unless the Plan shall theretofore have been terminated by the
Committee, the Plan shall terminate on January 9, 2006. No option may be granted
during the term of any suspension of the Plan or after termination of the Plan.
The amendment or termination of the Plan shall not, without the written consent
of the option holder, alter or impair any rights or obligations under any option
theretofore granted under the Plan.
11. Effective Date
Subject to stockholder approval, the effective date of the Plan shall
be January 10, 1996.
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APPENDIX 1
PROXY CARD
ARK RESTAURANTS CORP.
Proxy Solicited by the Board of Directors
for the Annual Meeting of Shareholders
March 19, 1996
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
Tuesday, March 19, 1996 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.
(See reverse side)
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(1) Election of a board of seven directors
<TABLE>
<CAPTION>
WITHHOLD AUTHORITY
<S> <C> <C>
Nominee VOTE FOR TO VOTE FOR
------- -------- -----------
Ernest Bogen [ ] [ ]
Michael Weinstein [ ] [ ]
Vincent Pascal [ ] [ ]
Robert Towers [ ] [ ]
Andrew Kuruc [ ] [ ]
Donald D. Shack [ ] [ ]
Jay Galin [ ] [ ]
(2) Approval of the Ark Restaurants Corp. 1996 Stock Option Plan.
FOR [ ] AGAINST [ ] ABSTAIN [ ]
(3) Ratification of the appointment of Deloitte & Touche LLP as
independent auditors for the 1996 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: _______________________________, 1996
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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.
<PAGE>
</TABLE>
