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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark one)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 29, 1997
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______ to ______
Commission file number 0-14030
ARK RESTAURANTS CORP.
(Exact name of registrant as specified in its charter)
New York 13-3156768
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
85 Fifth Avenue, New York, New York 10003
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including
area code (212) 206-8800
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days.
Yes X No _____
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Class Outstanding shares at May 8, 1997
(Common stock, $.01 par value) 3,832,499
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ARK RESTAURANTS CORP. AND SUBSIDIARIES
INDEX
<TABLE>
<CAPTION>
PAGE
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<S> <C>
PART I - FINANCIAL INFORMATION:
Item 1. Consolidated Financial Statements:
Consolidated Condensed Balance Sheets - March 29, 1997
(Unaudited) and September 28, 1996 (Unaudited) 1
Consolidated Condensed Statements of Operations and Retained Earnings -
13-week periods ended March 29, 1997 (Unaudited) and March 30, 1996
(Unaudited) and 26-week periods ended March 29, 1997 (Unaudited) and March
30, 1996 (Unaudited) 2
Consolidated Condensed Statements of Cash Flows - 26-week periods
ended March 29, 1997 (Unaudited) and March 30, 1996 (Unaudited) 3
Notes to Consolidated Condensed Financial
Statements (Unaudited) 4
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 5-8
PART II - OTHER INFORMATION:
Item 4. Submission of Matters to a Vote of Security Holders 9
Item 6. Exhibits and Reports on Form 8-K 10
</TABLE>
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PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
ARK RESTAURANTS CORP. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS (Unaudited)
(Dollars in Thousands)
<TABLE>
<CAPTION>
March 29, September 28,
1997 1996
--------- -------------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 451 $ 907
Accounts receivable 2,369 1,462
Current portion of long-term receivables 424 94
Inventories 1,276 840
Prepaid expenses 519 465
Refundable and prepaid income taxes 1,287 -
Other current assets 816 409
Deferred income taxes 681 631
------- -------
Total current assets 7,823 4,808
LONG-TERM RECEIVABLES 1,067 360
ASSETS HELD FOR SALE 1,434 2,614
FIXED ASSETS - At Cost:
Leasehold improvements 23,030 13,020
Furniture, fixtures and equipment 16,899 11,114
Leasehold improvements in progress 33 6,289
------- -------
39,962 30,423
Less accumulated depreciation and
amortization 12,557 11,325
------- -------
27,405 19,098
INTANGIBLE ASSETS - Less accumulated
amortization of $2,217 and $2,070 3,711 3,885
OTHER ASSETS 599 680
DEFERRED INCOME TAXES 1,059 934
------- -------
TOTAL ASSETS $43,098 $32,379
======= =======
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable - trade $ 3,625 $ 2,365
Accrued expenses and other current
liabilities 3,438 3,031
Current maturities of long-term debt 947 151
Current maturities of capital lease obligations 234 241
Accrued income taxes - 324
------- -------
Total current liabilities 8,244 6,112
LONG-TERM DEBT - net of current maturities 10,523 6,253
OBLIGATIONS UNDER CAPITAL LEASES - net of current
maturities 546 662
OPERATING LEASE DEFERRED CREDIT 1,547 1,547
SHAREHOLDERS' EQUITY:
Common stock, par value $.01 per share -
authorized, 10,000,000 shares;
issued, 5,177,836 and 4,608,882 shares 52 46
Additional paid-in capital 13,879 7,790
Retained earnings 9,554 11,216
------- -------
23,485 19,052
Less treasury stock, 1,345,337 shares 1,247 1,247
------- -------
Total shareholders' equity 22,238 17,805
------- -------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $43,098 $32,379
======= =======
</TABLE>
See notes to consolidated condensed
financial statements
1
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ARK RESTAURANTS CORP. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS AND RETAINED EARNINGS
(Unaudited)
(In Thousands, Except per share amounts)
<TABLE>
<CAPTION>
13 Weeks Ended 26 Weeks Ended
----------------------- -----------------------
March 27, March 30, March 27, March 30,
1997 1996 1997 1996
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
NET SALES $24,887 $15,450 $43,054 $34,173
COST OF SALES 7,112 4,302 12,210 9,480
------- ------- ------- -------
GROSS RESTAURANT PROFIT 17,775 11,148 30,844 24,693
MANAGEMENT FEE INCOME 453 454 651 630
------- ------- ------- -------
18,228 11,602 31,495 25,323
------- ------- ------- -------
OPERATING EXPENSES
Payroll and payroll benefits 10,244 6,441 17,602 13,305
Occupancy 3,365 2,556 5,797 4,791
Depreciation and amortization 858 675 1,446 1,337
Other 4,005 2,991 6,555 6,032
------- ------- ------- -------
18,472 12,663 31,400 25,465
GENERAL AND ADMINISTRATIVE
EXPENSES 1,587 1,225 3,009 2,230
------- ------- ------- -------
20,059 13,888 34,409 27,695
------- ------- ------- -------
OPERATING LOSS (1,831) (2,286) (2,914) (2,372)
------- ------- ------- -------
OTHER EXPENSE (INCOME):
Interest expense, net 219 111 238 210
Other income (203) (344) (384) (574)
------- ------- ------- ------
16 (233) (146) (364)
------- ------- ------- ------
LOSS BEFORE BENEFIT FOR
INCOME TAXES (1,847) (2,053) (2,768) (2,008)
BENEFIT FOR INCOME TAXES (739) (1,024) (1,107) (1,004)
------- ------- ------- -------
NET LOSS (1,108) (1,029) (1,661) (1,004)
RETAINED EARNINGS, Beginning
of period 10,663 10,452 11,216 10,427
------- ------ ------- -------
RETAINED EARNINGS, End of period $ 9,555 $9,423 $ 9,555 $9,423
======= ======= ======= =======
NET LOSS PER SHARE $(.29) $(.32) $(.46) $(.31)
===== ===== ===== =====
WEIGHTED AVERAGE NUMBER OF SHARES
USED IN COMPUTATIONS 3,829 3,245 3,600 3,220
======= ======= ======= =======
</TABLE>
See notes to consolidated condensed
financial statements
2
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ARK RESTAURANTS CORP. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS (Unaudited)
(Dollars in Thousands)
<TABLE>
<CAPTION>
26 Weeks Ended
--------------------------
March 27, March 30,
1997 1996
-------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $(1,661) $(1,004)
Adjustments to reconcile net loss to net
cash provided by operating activities:
Depreciation and amortization of fixed assets 1,365 1,163
Amortization of intangibles 206 240
Loss (Gain) on sale of restaurants (188) 97
Deferred income taxes (175) (104)
Changes in assets and liabilities:
Decrease (Increase) in accounts receivable (907) 25
Decrease (Increase) in inventories (436) (12)
Decrease (Increase) in prepaid expenses (54) 285
Decrease (Increase) in refundable and prepaid income taxes (1,287) (1,158)
Decrease (Increase) in other assets (386) 90
Increase (Decrease) in accounts payable - trade 1,260 229
Increase (Decrease) in accrued expenses and other
current liabilities 353 (360)
Increase (Decrease) in accrued income taxes (324) (265)
------- -------
Net cash used in operating activities (2,234) (774)
------- -------
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to fixed assets (9,539) (829)
Additions to intangible assets (7) -
Issuance of long-term receivables - (42)
Payments received on long-term receivables 21 41
Restaurant sales 267 -
------- -------
Net cash used in investing activities (9,258) (830)
------- -------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds of long-term debt 9,750 1,500
Principal payment on long-term debt (4,686) (68)
Principal payment on capital lease obligations (123) (113)
Proceeds from common stock private placement, net 6,029 -
Exercise of stock options 66 134
------- -------
Net cash provided by financing activities 11,036 1,453
------- -------
NET DECREASE IN CASH AND CASH EQUIVALENTS (456) (151)
CASH AND CASH EQUIVALENTS, beginning of period 907 1,271
------- -------
CASH AND CASH EQUIVALENTS, end of period $ 451 $ 1,120
======= =======
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during year for:
Interest $ 629 $ 262
======= =======
Income taxes $ 693 529
======= =======
</TABLE>
See notes to consolidated condensed financial statements.
3
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ARK RESTAURANTS CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Unaudited)
1. CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
The consolidated condensed financial statements have been prepared by Ark
Restaurants Corp. (the "Company"), without audit. In the opinion of management,
all adjustments (which include only normal recurring adjustments) necessary to
present fairly the financial position at March 29, 1997 and results of
operations and changes in cash flows for the periods ended March 29, 1997 and
March 30, 1996 have been made.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted. It is suggested that these condensed financial
statements be read in conjunction with the consolidated financial statements and
notes thereto included in the Company's annual report on Form 10-K for the year
ended September 28, 1996. The results of operations for the periods ended March
29, 1997 is not necessarily indicative of the operating results for the full
year.
2. RESTAURANT SALES
In the first quarter of fiscal 1997 the Company sold three of its smaller
restaurants located in the borough of Manhattan in New York City. The aggregate
selling price for the restaurants was $1,366,000, of which an aggregate of
$308,000 was paid in cash and the balance of $1,058,000 is payable in various
periods through December 2006. Gains of approximately $188,000 were recognized
on these sales.
3. LONG-TERM DEBT
In January 1997, the Company borrowed from its main bank, $2,851,000 to
refinance the purchase of various restaurant equipment at its food and beverage
facilities in a hotel & casino in Las Vegas, Nevada. The note bears interest at
8.75% per annum and is payable in 60 equal monthly installments of $58,833
inclusive of interest, until maturity in January 2002. The Company granted the
bank a security interest in such restaurant equipment. In connection with such
financing, the Company granted the bank the right to purchase 35,000 shares of
the Company's common stock at the exercise price of $11.625 per share through
December 2001.
4. COMMON STOCK PRIVATE PLACEMENT
In December 1996, the Company raised net proceeds of $6,066,000 in a private
placement of 551,454 shares of its common stock at $11 per share. The proceeds
of such offering were used to repay a portion of the Company's outstanding bank
borrowings and for the payment of capital expenditures on its Las Vegas
restaurant facilities at the New York New York Hotel & Casino in Las Vegas,
Nevada which opened in January 1997.
5. INCOME PER SHARE OF COMMON STOCK
Per share data is based upon the weighted average number of shares of common
stock and common stock equivalents outstanding during each period; common stock
equivalents consist of dilutive stock options. For the periods ended March 29,
1997 and March 30, 1996, no effect has been given to outstanding options since
the effect was not material.
4
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
This Management's Discussion and Analysis of Financial Condition and
Results of Operations contains forward-looking statements that involve risks
and uncertainties. The Company's actual results could differ materially from
those anticipated in these forward-looking statements.
NET SALES
Net sales at restaurants owned by the Company increased 61.1% in the
13-week period ended March 29, 1997 from the comparable period ended March 30,
1996 and increased 26.0% in the 26-week period ended March 29, 1997 from the
comparable period last year. The increase in sales for the 13-week and 26-week
periods ended March 29, 1997 was primarily due to sales of $9,577,000 from the
food and beverage operations in the New York New York Hotel & Casino resort in
Las Vegas all of which were realized in the 13-week period ended March 29, 1997.
At such facilities the Company operates a 450 seat, twenty four hour a day
restaurant (America); a 160 seat steak house (Gallagher's); a 120 seat Mexican
restaurant (Gonzalez y Gonzalez), the resorts room service, banquet facilities
and an employee dining facility. The Company also operates a complex of nine
smaller eateries (Village Eateries) in the resort which simulate the experience
of walking through New York's Little Italy and Greenwich Village.
The increase in sales for the 13-week and 26-week periods ended March 29,
1997 were offset to a minor extent by the sale of one restaurant in fiscal 1996
(the Whale's Tail) and three restaurants in fiscal 1997 (Museum Cafe, Rodeo Bar
& Grill and Mackinac Bar & Grill). Same store sales in the 13-week period ended
March 29, 1997 increased by 6.4% and same store sales in the 26-week period
increased by 2.5% principally due to increased customer counts.
COSTS AND EXPENSES
The Company's cost of sales consists of food and beverage costs at
restaurants owned by the Company. For the 13-week period ended March 29, 1997
cost of sales as a percentage of net sales was 28.6% as compared to 27.8% last
year and cost of sales as a percentage of net sales for the 26-week period was
28.4% as compared to 27.7% last year. The increase in cost of sales as a
percentage of food and beverage costs is due to higher cost of sales associated
with the Company's food and beverage operations in the New York New York Hotel &
Casino resort in Las Vegas as compared to the Company's other restaurants. The
Company believes that the higher cost of sales in Las Vegas is in part due to
inefficiencies typically encountered with new facilities and that such cost of
sales will improve in the upcoming fiscal quarters in comparison to 13-week
period ended March 29, 1997.
Operating expenses of the Company, consisting of restaurant payroll,
occupancy and other expenses at restaurants owned by the Company, as a
percentage of net sales, were 74.2% for the 13-week period ended March 29, 1997
as compared to 82.0% last year and for the 26-week period ended March 29, 1997
were 72.9% as compared to 74.5% last year . The decrease in operating expenses
as a percentage of net sales in the 13-week period ended March 29, 1997 was
principally due to benefits achieved from the 6.4% increase in same store sales
and from the sale of four restaurants in fiscal 1997 and fiscal 1996 which had
operated at a loss in the comparable period ended March 30, 1996. Occupancy
expenses as a percentage of net sales for the 13-week period ended March 29,
1997 decreased to 13.5% of net sales as compared to 16.5% last year principally
due to lower occupancy costs associated with the Company's Las Vegas restaurant
facilities.
5
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General and administrative expenses, as a percentage of net sales, were
6.4% for the 13-week period ended March 29, 1997 as compared to 7.9% last year
and for the 26-week period ended March 29, 1997 were 7.0% as compared to 6.5%
last year. If net sales at managed restaurants and bars were included in
consolidated net sales, general and administrative expenses as a percentage of
net sales would have been 5.7% for the 13-week period ended March 29, 1997 as
compared to 6.9% last year and would have been 6.1% for the 26-week period ended
March 29, 1997 as compared to 5.7% last year. The decrease in general and
administrative expenses as a percentage of net sales for the 13-week period
ended March 29, 1997 was principally due to the 61.1% increase in sales which
exceeded the 29.6% increase in general and administrative expenses. For the
26-week period ended March 29, 1997, general and administrative expenses
increased in corporate payroll, marketing, travel and other categories in
connection with the anticipated January 1997 opening of the Company's Las Vegas
restaurant facilities.
The Company had a net loss of $1,108,000 for the 13-week period ended March
29, 1997 as compared to a net loss of $1,029,000 last year and had a net loss of
$1,661,000 for the 26-week period ended March 29, 1997 as compared to $1,004,000
last year. The results for the 13-week period ended March 29, 1997, were
impacted by approximately $700,000 in pre-opening expenses and early operating
losses at the Company's Las Vegas restaurant facilities and results for the
26-week period ended March 29, 1997 were impacted by approximately $2,000,000 in
pre-opening and early operating losses at the Company's Las Vegas restaurant
facilities. The Las Vegas restaurant facilities have been profitable since
February 1997.
During the 13-week period ended March 29, 1997 the Company managed six
restaurants and two corporate dining facilities owned by third parties. Net
sales of the managed locations were $2,862,000 during the 13-week period ended
March 29, 1997 as compared to $2,249,000 last year and net sales for the 26-week
period ended March 29, 1997 were $6,133,000 as compared to $4,943,000 last year.
These increases were principally due to the addition of two management
agreements. Net sales of these operations are not included in consolidated net
sales.
INCOME TAXES
The provision (benefit) for income taxes reflects Federal income taxes
calculated on a consolidated basis and state and local income taxes calculated
by each subsidiary on a non consolidated basis. Most of the restaurants owned or
managed by the Company are owned or managed by a separate subsidiary. For state
and local income tax purposes, the losses incurred by a subsidiary may only be
used to offset that subsidiary's income, with the exception of the restaurants
which operate in the District of Columbia. Accordingly, the Company's overall
effective income tax rate has varied depending on the level of the losses
incurred at individual subsidiaries.
As a result of the enactment of the Revenue Reconciliation Act of 1993, the
Company is entitled, to a tax credit based on the amount of FICA taxes paid by
the Company with respect to the tip income of restaurant service personnel. The
Company estimates that this credit will be in excess of $400,000 for the current
year.
6
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LIQUIDITY AND SOURCES OF CAPITAL
The Company's primary source of capital is cash provided by operations and
funds available from the $12,000,000 revolving credit agreement with its main
bank. The Company utilizes capital primarily to fund the cost of developing and
opening new restaurants and acquiring existing restaurants.
The Company's Revolving Credit and Term Loan facility with its main bank
includes a $7,000,000 facility for use in construction of and as working capital
for the Company's recently opened Las Vegas restaurant facilities and a
$5,000,000 facility for working capital purposes at the Company's other
restaurants. The two facilities each have two year terms enabling the Company to
borrow until March 1998 at which time outstanding loans may be converted into
two year term loans. The $7,000,000 facility will convert into a two year loan
amortizing $6,000,000 over the two year period with the balance of $1,000,000
paid at maturity and the $5,000,000 facility will convert into a two year
self-amortizing term loan. At March 29, 1997 the Company had borrowings of
$7,750,000 outstanding under those facilities.
In January 1997,pursuant to a new equipment financing facility, the Company
borrowed from its main bank $2,851,000 at an interest rate of 8.75% to refinance
the purchase of various restaurant equipment at the Las Vegas restaurant
facilities. The note, which is payable in 60 equal monthly installments through
January 2002, is secured by such restaurant equipment.
The net cash used in investing activities for the 26-week period ended
March 29, 1997 ($9,258,000) was principally due to capital expenditures for the
Las Vegas restaurant facilities.
The net cash provided by financing activities for the 26-week period ended
March 29 includes net proceeds of $6,029,000 from the private placement in
December 1996 of 551,454 shares of its common stock at $11 per share. The funds
were used to repay a portion of the Company's outstanding borrowings on its
Revolving Credit and Term Loan Facility and for the payment of capital
expenditures on the Las Vegas restaurant facilities.
At March 29, 1997, the Company had a working capital deficit of $421,000 as
compared to a working capital deficit of $1,304,000 at September 28, 1996. The
restaurant business does not require the maintenance of significant inventories
or receivables, thus the Company is able to operate with minimal and even
negative working capital.
The Company also has a four year $1,300,000 Letter of Credit Facility with
its main bank for use in lieu of lease security deposits. At March 29, 1997 the
Company had delivered $1,075,000 in irrevocable letters of credit on this
facility.
The amount of indebtedness that may be incurred by the Company is limited
by the revolving credit agreement with its main bank. Certain provisions of the
agreement may impair the Company's ability to borrow funds.
RESTAURANT EXPANSION
The Company has a lease for a new facility in the World Financial Center in
downtown New York City. The Company expects to incur approximately $700,000 in
capital expenditures and other pre-opening
7
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expenses in connection with the opening of this restaurant. This restaurant,
which will have approximately 150 seats, is scheduled to open in the third
fiscal quarter of 1997.
The Company is exploring additional opportunities for expansion of its
business. However, the Company is not currently committed to any other projects.
The Company is not proceeding with a previously announced agreement in principle
to manage certain restaurants at hotel and casino facilities in Primm, Nevada.
The Company expects to fund its existing projects through cash from operations
and existing credit facilities. Additional expansion may require additional
external financing.
8
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PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
A lawsuit was commenced against the Company in April 1997 in the
District Court for Clark County, Nevada by one former employee and one current
employee of the Company's Las Vegas subsidiary alleging that (i) the Company
forced food service personnel at the Company's Las Vegas restaurant facilities
to pay a portion of their tips back to the Company in violation of Nevada law
and (ii) the Company failed to timely pay wages to terminated employees. The
action was brought as a class action on behalf of all similarly situated
employees. The Company believes that the first allegation is entirely without
merit and that the Company will have no liability. The Company also believes
that its liability, if any, from an adverse result in connection with the
second allegation would be inconsequential. The Company intends to vigorously
defend against these claims.
In addition, several unfair labor practice charges have been filed
against the Company before the National Labor Relations Board with respect to
the Company's Las Vegas subsidiary. The Company believes that these unfair labor
practice charges and the litigation described above are part of an ongoing
campaign by the Culinary Workers Union which is seeking to represent employees
at the Company's Las Vegas restaurants. However, rather than pursue the normal
election process pursuant to which employees are given the freedom to choose
whether they should be represented by a union, a process which the Company
supports, the Company believes the union is seeking to achieve recognition as
the bargaining agent for such employees through a campaign directed not at the
Company's employees but at the Company itself and its stockholders. The Company
intends to continue to support the right of its employees to decide such matters
and to oppose the efforts of the Culinary Workers Union to circumvent that
process.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company held its annual meeting of shareholders on March 18, 1997.
The following matters were submitted to a vote of the Company's shareholders:
(i) The election of eight directors;
(ii) The approval of an amendment to the Company's 1996 Stock Option
Plan (the "Plan") to increase the maximum number of shares of the
Company's Common Stock, $.01 par value per share (the "Common Stock")
available for issuance under the Plan from 135,000 to 270,000;
(iii) The approval of an amendment to the Company's certificate of
incorporation that will authorize the Company to issue up to 1,000,000
shares of preferred stock to be issued from time to time in such
amounts and designations as authorized by the Board of Directors; and
(iv) The ratification of the appointment of Deloitte & Touche LLP as
independent auditors for the 1997 fiscal year.
The Company's shareholders re-elected the entire Board of Directors
consisting of Ernest Bogen, Michael Weinstein, Vincent Pascal, Robert Towers,
Andrew Kuruc, Paul Gordon, Donald D. Shack, and Jay Galin.
The Company's shareholders approved the amendment to the Plan to
increase the maximum number of shares of the Company's Common Stock available
for issuance under the Plan from 135,000 to 270,000 shares by a vote of
2,969,495 for, 239,415 against and 128,850 abstaining.
The Company's shareholders approved the amendment to the Company's
certificate of incorporation thereby authorizing the Company to issue up to
1,000,000 shares of preferred
9
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stock to be issued from time to time in cash amounts and designations as
authorized by the Board of Directors by a vote of 1,996,758 for, 460,838 against
and 1,350 abstaining.
The Company's shareholders ratified the Board of Director's appointment
of Deloitte & Touche LLP as the Company's independent auditors for the 1997
fiscal year by a vote of 3,347,180 for, 500 against and 751 abstaining.
ITEM 6. EXHIBITS AND REPORTS OF FORM 8-K
(A) EXHIBITS:
3.1 Certificate of Incorporation of the Registrant, filed on
January 4, 1983, incorporated by reference to Exhibit 3.1 to
the Registrant's Annual Report on Form 10-K for the fiscal
year ended October 1, 1994 (the "1994 10-K").
3.2 Certificate of Amendment of the Certificate of Incorporation
of the Registrant filed on October 11, 1985, incorporated by
reference to Exhibit 3.2 to the 1994 10-K.
3.3 Certificate of Amendment of the Certificate of Incorporation
of the Registrant filed on July 21, 1988, incorporated by
reference to Exhibit 3.3 to the 1994 10-K.
*3.4 Certificate of Amendment of the Certificate of Incorporation
of the Registrant filed on May 13, 1997.
3.5 By-Laws of the Registrant, incorporated by reference to
Exhibit 3.4 to the 1994 10-K.
10.1 Amended and Restated Redemption Agreement dated June 29, 1993
between the Registrant and Michael Weinstein, incorporated by
reference to Exhibit 10.1 to the 1994 10-K.
10.2 Form of Indemnification Agreement entered into between the
Registrant and each of Michael Weinstein, Ernest Bogen,
Vincent Pascal, Robert Towers, Jay Galin, Andrew Kuruc and
Donald D. Shack, incorporated by reference to Exhibit 10.2 to
the 1994 10-K.
10.3 Ark Restaurants Corp. Amended Stock Option Plan, incorporated
by reference to Exhibit 10.3 to the 1994 10-K.
10.4 Second Amended and Restated Credit Agreement dated as of March
5, 1996 between the Company and Bank Leumi Trust Company of
New York, incorporated by reference to Exhibit 10.52 to the
Registrant's Quarterly Report
10
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on Form 10-Q for the quarterly period ended March 30, 1996
(the "March 1996 10-Q").
10.5 Ark Restaurants Corp. 1996 Stock Option Plan, incorporated by
reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-8 filed with the Commission on April 17,
1997 (Registration Number 333-25363).
---------------------------------
*Filed Herewith
(b) REPORTS ON FORM 8-K:
None
11
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: May 13, 1997
ARK RESTAURANTS CORP.
By /S/ Michael Weinstein
---------------------------------------
Michael Weinstein, President
By /S/ Andrew B. Kuruc
---------------------------------------
Andrew B. Kuruc
Vice President, Controller and
Principal Accounting Officer
12
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EXHIBIT INDEX
Number Description
3.1 Certificate of Incorporation of the
Registrant, filed on January 4, 1983,
incorporated by reference to Exhibit 3.1 to
the Registrant's Annual Report on Form 10-K
for the fiscal year ended October 1, 1994
(the "1994 10-K").
3.2 Certificate of Amendment of the Certificate
of Incorporation of the Registrant filed on
October 11, 1985, incorporated by reference
to Exhibit 3.2 to the 1994 10-K.
3.3 Certificate of Amendment of the Certificate
of Incorporation of the Registrant filed on
July 21, 1988, incorporated by reference to
Exhibit 3.3 to the 1994 10-K.
3.4 Certificate of Amendment of the Certificate
of Incorporation of the Registrant filed on
May 13, 1997.
3.5 By-Laws of the Registrant, incorporated by
reference to Exhibit 3.4 to the 1994 10-K.
10.1 Amended and Restated Redemption Agreement
dated June 29, 1993 between the Registrant
and Michael Weinstein, incorporated by
reference to Exhibit 10.1 to the 1994 10-K.
10.2 Form of Indemnification Agreement entered
into between the Registrant and each of
Michael Weinstein, Ernest Bogen, Vincent
Pascal, Robert Towers, Jay Galin, Andrew
Kuruc and Donald D. Shack, incorporated by
reference to Exhibit 10.2 to the 1994 10-K.
10.3 Ark Restaurants Corp. Amended Stock Option
Plan, incorporated by reference to Exhibit
10.3 to the 1994 10-K.
10.4 Second Amended and Restated Credit Agreement
dated as of March 5, 1996 between the
Company and Bank Leumi Trust Company of New
York, incorporated by reference to Exhibit
10.52 to the Registrant's Quarterly Report
on Form 10-Q for the quarterly period ended
March 30, 1996 (the "March 1996 10-Q").
<PAGE>
<PAGE>
10.5 Ark Restaurants Corp. 1996 Stock Option
Plan, incorporated by reference to Exhibit
4.1 to the Registrant's Registration
Statement on Form S-8 filed with the
Commision on April 17, 1997 (Registration
Number 333-25363).
<PAGE>
<PAGE>
EXHIBIT 3.4
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
THE REGISTRANT
<PAGE>
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
ARK RESTAURANTS CORP.
UNDER SECTION 805 OF THE BUSINESS CORPORATION LAW
The undersigned, being the President and Secretary, respectively, of
ARK RESTAURANTS CORP., do hereby certify:
1. The name of the corporation is ARK RESTAURANTS CORP. (the
"Corporation"), and the name under which the corporation was formed was Ark
Management Corp.
2. The Certificate of Incorporation of the Corporation was filed by the
Department of State on January 4, 1983.
3. Paragraph 4 of the Certificate of Incorporation is hereby amended
pursuant to Section 801 of the Business Corporation Law to authorize the
Corporation to issue up to one million (1,000,000) shares of preferred stock,
with a par value of $.01 per share (the "Preferred Stock"), to be issued from
time to time in such amounts and designations as authorized by the Board of
Directors.
4. To accomplish the foregoing amendment, Paragraph 4 of the
Certificate of Incorporation which refers to the authorized capital of the
Corporation is hereby deleted in its entirety and the following new Paragraph 4
is substituted in lieu thereof:
The total number of all classes of stock which the Corporation
shall have authority to issue shall be eleven million (11,000,000), of
which ten million (10,000,000) shares shall be Common Stock, with a par
value of $.01 per share, and one million (1,000,000) shares shall be
Preferred Stock, with a par value of $.01 per share.
The designations and the powers, preferences and rights, and
the qualifications, limitations or restrictions, of each class of stock
of the Corporation shall be the same in all respects, as though shares
of one class, except as follows:
<PAGE>
<PAGE>
(i) Issuance
a. Authority is hereby expressly granted to and vested in the
Board of Directors of the Corporation to provide for the issue
of the Preferred Stock in one or more series and in connection
therewith to fix by resolutions providing for the issue of
such series of the number of shares to be included in such
series and the designations and such voting powers, full or
limited, or no voting powers, and such of the preferences and
relative, participating, operational or other special rights,
and the qualifications, limitations or restrictions thereof,
of such series of the Preferred Stock which are not fixed by
this Certificate of Amendment to the Certificate of
Incorporation, to the full extent now or hereafter permitted
by the laws of the State of New York. Without limiting the
generality of the grant of authority contained in the
preceding sentence, the Board of Directors is authorized to
determine any or all of the following, and the shares of each
series may vary from the shares of any other series in any or
all of the following aspects:
(1) The number of shares of such series (which may
subsequently be increased, except as otherwise
provided by the resolutions of the Board of Directors
providing for the issue of such series, or decreased
to a number not less than the number of shares then
outstanding) and the distinctive designations
thereof;
(2) The dividend rights, if any, of such series, the
dividend preferences, if any, as between such series
and any other class or series of stock, whether and
the extent to which shares of such series shall be
entitled to participate in dividends with shares of
any other series or class of stock, whether and the
extent to which dividends on such series shall be
cumulative, and any limitations, restrictions or
conditions on the payment of such dividends;
(3) The time or times during which, the price or
prices at which, and any other terms or conditions on
which the shares of such series may be redeemed, if
redeemable;
(4) The rights of such series, and the preferences,
if any, as between such series and any other class or
series of stock, in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of
the Corporation,
8
<PAGE>
<PAGE>
and whether and the extent to which shares of any
such series shall be entitled to participate in such
event with any other class or series of stock;
(5) The voting powers, if any, in addition to the
voting powers prescribed by law of shares of such
series, and the terms of exercise of such voting
powers;
(6) Whether shares of such series shall be
convertible into or exchangeable for shares of any
other series or class of stock, or any other
securities, and the terms and conditions, if any,
applicable to such right; and
(7) The terms and conditions, if any, of any
purchase, retirement or sinking fund which may be
provided for the shares of such series.
b. Except as otherwise provided by law, the Board of Directors
shall have full authority to issue, at any time and from time
to time, shares of the Corporation's Common Stock in any
manner and amount and for such consideration as it, in its
absolute discretion, shall determine.
(ii) Voting Rights
Except as otherwise expressly required by law, in all
matters as to which the vote or consent of stockholders of the
Corporation shall be required to be taken, the holders of the
shares of the Common Stock shall be entitled to one vote for
each share of such stock held by them. Except as otherwise
expressly required by law, in all matters as to which the vote
or consent of stockholders of the Corporation shall be
required to be taken, the holders of the Preferred Stock shall
have such voting rights as may be determined from time to time
by the Board of Directors, by resolution or resolutions
providing for the issuance of such Preferred Stock or any
series thereof.
9
<PAGE>
<PAGE>
(iii) Conversion
a. The Board of Directors of the Corporation, by the
resolution adopted for the purpose of establishing any series
of Preferred Stock, may fix and determine the ratios and the
terms and conditions under which such series of Preferred
Stock may or shall be converted into shares of another series
of Preferred Stock or shares of any other class of stock of
the Corporation.
b. No fractional shares shall be issued upon any conversion
pursuant to this Paragraph 4. In lieu thereof, the Corporation
shall (1) pay to the holders otherwise entitled to fractional
shares cash, equal to the market value thereof as at the date
of conversion, such market value to be determined in good
faith by the Board of Directors of the Corporation, or (2)
issue and deliver to them scrip or warrants which shall
entitle the holder thereof to receive a certificate for a full
share upon surrender of such scrip or warrants aggregating a
full share, such scrip or warrants to be in such form and to
contain such provisions as shall be determined by the Board of
Directors of the Corporation. Upon conversion, no allowance or
adjustment shall be made with respect to shares of Preferred
Stock for cash dividends declared but unpaid on such stock.
(iv) Dividends
a. The holders of the Preferred Stock shall be entitled to
fixed dividends when and as declared and at the rates
determined by the resolution of the Board of Directors which
establishes the series to which the rates shall apply. Said
resolution may determine whether the said dividends shall be
cumulative, the time fixed for payment thereof, and whether
the said dividends shall be set aside or paid before, on a par
with, or only after, the dividends shall be set aside or paid
on the Common Stock.
b. The holders of Common Stock shall be entitled to receive,
as and when declared and made payable by the Board of
Directors, and after all dividends, current and accrued, shall
have been paid or declared and set apart for payment upon the
Preferred Stock, to the extent the Board of Directors shall
have directed the dividends on Preferred Stock to be paid, or
declared and set apart for payment before the payment or
setting apart of dividends on the Common Stock, such dividend
as may be declared by the Board of Directors from time to
time. Each share of Common Stock shall in all ways be treated
equally in respect of dividends.
10
<PAGE>
<PAGE>
(v) Liquidation or Dissolution
a. The Board of Directors, by the resolution which establishes
a series of Preferred Stock, shall determine a fixed
liquidation amount applicable to said series. Said resolution
may determine (1) that said series shall participate in any
distribution on liquidation, dissolution or winding-up of the
affairs of the Corporation before the payment, in full or in
part, of the fixed liquidation amounts payable with respect to
the Common Stock; (2) that said series shall participate in
any distribution on liquidation, dissolution or winding-up of
the affairs of the Corporation, ratably with the Common Stock
(or any other series of Preferred Stock having liquidation
rights on a par with the Common Stock) in proportion to
amounts equal to the fixed liquidation amounts of the shares
participating plus dividends thereon which have been declared
and are unpaid; or (3) that said shares shall participate in
any distribution on liquidation, dissolution or winding-up of
the affairs of the Corporation only after the payment, in full
or in part, of the fixed liquidation amounts plus dividends
thereon which have been declared and are unpaid on the Common
Stock (and any series of Preferred Stock having liquidation
rights on a par with the Common Stock). Said shares shall have
liquidation preferences and rights as determined in said
resolution or resolutions.
b. In the event of liquidation or dissolution, the holders of
the Common Stock shall be entitled to receive out of the
assets of the Corporation, after payment of debts and
liabilities, a pro rata distribution in proportion to the
respective number of shares of Common Stock held by each of
them; provided, however, (1) in the event the Board of
Directors of the Corporation establishes one or more series of
Preferred Stock entitled to a distribution on liquidation,
dissolution or winding-up of the affairs of the Corporation
before any such distribution shall be made with respect to the
Common Stock, such liquidation preference in favor of the
Preferred Stock shall be paid before the liquidation amount
payable to the holders of Common Stock pursuant to this
subparagraph b. shall be paid; and (2) in the event the Board
of Directors of the Corporation establishes one or more series
of Preferred Stock entitled to participate ratably with
holders of shares of the Common Stock in any distribution on
liquidation, dissolution or winding-up of the affairs of the
Corporation, the holders of the Common Stock shall participate
ratably with each said series of Preferred Stock so entitled
as set forth in subparagraph a. (2) above.
11
<PAGE>
<PAGE>
5. The foregoing amendment to the Certificate of Incorporation was
authorized by the unanimous written consent of the Board of Directors of the
Corporation dated January 15, 1997, followed by the favorable vote of holders of
a majority of all outstanding shares entitled to vote thereon of a meeting of
shareholders held on March 18, 1997.
IN WITNESS WHEREOF, we have duly executed this Certificate of Amendment
and affirm that the statements contained herein are true under the penalties of
perjury this 9th of May, 1997.
s/ Michael Weinstein
--------------------------------------
Michael Weinstein, President
s/ Vincent Pascal
--------------------------------------
Vincent Pascal, Secretary
12
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND> This schedule contains summary financial information extracted
from the balance sheet and income statement for the 26 weeks of
Ark Restaurants Corp. and is qualified in its entirety by
reference to such financial statements
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-27-1997
<PERIOD-START> SEP-29-1996
<PERIOD-END> MAR-29-1997
<CASH> 451
<SECURITIES> 0
<RECEIVABLES> 2,369
<ALLOWANCES> 0
<INVENTORY> 1,276
<CURRENT-ASSETS> 7,823
<PP&E> 39,962
<DEPRECIATION> 12,557
<TOTAL-ASSETS> 43,098
<CURRENT-LIABILITIES> 8,244
<BONDS> 12,250
<COMMON> 52
0
0
<OTHER-SE> 22,186
<TOTAL-LIABILITY-AND-EQUITY> 43,098
<SALES> 43,054
<TOTAL-REVENUES> 43,054
<CGS> 12,210
<TOTAL-COSTS> 12,210
<OTHER-EXPENSES> 34,409
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 238
<INCOME-PRETAX> (2,768)
<INCOME-TAX> (1,107)
<INCOME-CONTINUING> (1,661)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,661)
<EPS-PRIMARY> (.46)
<EPS-DILUTED> (.46)
</TABLE>
