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<PAGE>
As filed with the Securities and Exchange Commission on April 17, 1997.
Registration No. 33-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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 identification number)
incorporation or organization)
85 FIFTH AVENUE
NEW YORK, NEW YORK 10003
(Address of principal executive offices) (Zip Code)
1996 STOCK OPTION PLAN
(Full title of the plan)
SHACK & SIEGEL, P.C.
530 FIFTH AVENUE
NEW YORK, NEW YORK 10036
ATTN: PAUL S. GOODMAN, ESQ.
(Name and address of agent for service)
(212) 782-0700
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of Registration Fee
to be registered registered offering price per share* aggregate offering price
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 270,000 $9.25 $2,497,500 $757
par value $.01 per share
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
*Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and 457(h) on the basis of the average of the
high price of $9.50 and low price of $9.00 reported on the NASDAQ
National Market System for the Registrant's Common Stock on April 11,
1997.
If any of the securities being registered pursuant to this form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, as amended, check the following box.
[X]
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified by this Part I will
be sent or given to eligible participants as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
and are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant's Annual Report on Form 10-K for the fiscal year ended
September 28, 1996, the Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended December 28, 1996 and the description of the Registrant's
Common Stock, par value $.01 per share, set forth in the Registrant's
Registration Statement No. 33-00964 on Form S-18 are incorporated herein by
reference and are deemed to be part hereof.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment indicating that all shares of
Common Stock, par value $.01 per share (the "Shares"), offered by the Registrant
for purchase pursuant to options which may be granted under the Registrant's
1996 Stock Option Plan have been sold or deregistering all such Shares then
remaining unsold, are deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Shack & Siegel, P.C., 530 Fifth Avenue, New York, New York 10036, is
counsel to the Registrant and has passed upon the legality of the Shares to
which this Registration Statement relates. Donald D. Shack, a member of the firm
Shack & Siegel, P.C., is a director of the Registrant.
2
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(A) The Registrant's authority to indemnify its officers and directors
is governed by the provisions of Sections 721 through 726 of the Business
Corporation Law of the State of New York (the "BCL"), by the Certificate of
Incorporation of the Registrant, and by the Registrant's By-laws.
(B) The Certificate of Incorporation of the Registrant provides as
follows:
The personal liability of the directors of the Corporation to
the Corporation or its shareholders for damages for any breach
of duty as a director is hereby eliminated to the fullest
extent permitted by the Business Corporation Law of the State
of New York as the same may be amended and supplemented. The
Corporation shall, to the fullest extent permitted by the New
York Business Corporation Law, as the same may be amended and
supplemented, indemnify any and all persons whom it shall have
power to indemnify under said law from and against any and all
of the expenses, liabilities or other matters referred to in
or covered by said law, and the indemnification provided for
herein shall not be deemed exclusive of any other rights to
which any indemnified person may be entitled under any
by-laws, agreement, vote of shareholders or directors or
otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of
heirs, executors and administrators of such person.
(C) Article V, Section 4 of the Registrant's By-Laws provides as
follows:
The Corporation shall, to the fullest extent permitted by the
New York Business Corporation Law as amended or supplemented,
indemnify any and all persons whom it shall have power to
indemnify under said law from and against any and all of the
expenses, liabilities or other matters referred to in or
covered by said law.
The Corporation may enter into indemnification agreements with
any officers, directors or other persons whom it shall have
power to indemnify, when and as determined by the Board of
Directors.
(D) The Board of Directors of the Registrant authorized the Registrant
to enter into indemnity agreements with officers and directors of the Registrant
when and as determined by the Board of Directors. Pursuant to the foregoing
authority, the Registrant has entered into indemnity agreements with each of its
directors and certain of its officers.
3
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The indemnity agreements obligate the Registrant to provide the maximum
protection allowed under the BCL. The indemnity agreements supplement and
increase the protection afforded to officers and directors under the Certificate
of Incorporation in the following respects:
1. The indemnity agreements establish the presumption that the officer
or director has met the standard of conduct required for indemnification, as
prescribed under the BCL. Indemnification will be made unless the Board of
Directors, independent legal counsel or the stockholders of the Registrant
determines that the applicable standard of conduct has not been met.
2. The indemnity agreements provide that litigation expenses shall be
paid promptly by the Registrant as they are incurred or shall be advanced on
behalf of the officer or director as may be appropriate against delivery of
invoices therefor in advance of indemnification, provided that if it is
ultimately determined that such officer or director is not entitled to
indemnification for such expenses he or she shall promptly repay such amounts to
the Registrant.
3. In the event of a determination by the Board of Directors,
independent legal counsel or the stockholders of the Registrant that an officer
or director did not meet the standard of conduct required for indemnification,
the indemnity agreements allow such officer or director to contest this
determination by petitioning a court to make an independent determination of
whether such officer or director is entitled to indemnification under the
indemnity agreements.
4. The indemnity agreements explicitly provide for partial
indemnification of costs and expenses in the event that an officer or director
is not entitled to full indemnification under the terms of the indemnity
agreements.
5. The indemnity agreements cannot be unilaterally modified or amended
by the Registrant, the Board of Directors or the stockholders of the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
4.1 1996 Stock Option Plan.
4.2 Form of Option Agreement under the 1996 Stock Option
Plan.
5 Opinion of Shack & Siegel, P.C. with respect to the
legality of the Shares being registered hereby.
</TABLE>
4
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<TABLE>
<CAPTION>
<S> <C>
23.1 Consent of Shack & Siegel, P.C. (contained in the Opinion
filed as Exhibit 5 hereto).
23.2 Consent of Deloitte & Touche LLP.
24 Power of Attorney (contained on the signature page
hereof).
</TABLE>
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section l3 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each
5
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<PAGE>
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
6
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on this 17th day of
April, 1997.
ARK RESTAURANT CORP.
(Registrant)
By: /s/ Michael Weinstein
-----------------------
Michael Weinstein,
President
POWER OF ATTORNEY
Each person whose signature to this Registration Statement appears
below hereby appoints Michael Weinstein and Robert Towers, and each of them
acting singly, as his attorney-in-fact, to sign in his behalf individually and
in the capacity stated below and to file all amendments and post-effective
amendments to this Registration Statement, which amendment or amendments may
make such changes and additions to this Registration Statement as such
attorney-in-fact may deem necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the capacity
and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE DATE CAPACITY IN WHICH SIGNED
--------- ---- ------------------------
<S> <C> <C>
/s/ Michael Weinstein April 17, 1997 President and Director of the Registrant
- ----------------------------------
Michael Weinstein
/s/ Ernest Bogen April 17, 1997 Chairman of the Board and Director of
- ---------------------------------- the Registrant
Ernest Bogen
/s/ Vincent Pascal April 17, 1997 Vice President, Secretary and Director of
- ---------------------------------- the Registrant
Vincent Pascal
/s/ Robert Towers April 17, 1997 Vice President, Treasurer and Director of
- ---------------------------------- the Registrant
Robert Towers
/s/ Andrew Kuruc April 17, 1997 Vice President, Controller and Director of
- ---------------------------------- the Registrant
Andrew Kuruc
/s/ Paul Gordon April 17, 1997 Vice President and Director of the
- ---------------------------------- Registrant
Paul Gordon
/s/ Jay Galin April 17, 1997 Director of the Registrant
- ----------------------------------
Jay Galin
/s/ Donald D. Shack April 17, 1997 Director of the Registrant
- ----------------------------------
Donald D. Shack
</TABLE>
7
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description Page
-------------- ----------- ----
<S> <C> <C>
4.1 1996 Stock Option Plan.
4.2 Form of Option Agreement under the
1996 Stock Option Plan.
5 Opinion of Shack & Siegel, P.C. with
respect to the legality of the shares of
Common Stock being registered hereby.
23.1 Consent of Shack & Siegel, P.C.
(contained in the Opinion filed as
Exhibit 5 hereto).
23.2 Consent of Deloitte & Touche LLP.
24 Power of Attorney (contained on the
signature page hereof).
</TABLE>
<PAGE>
<PAGE>
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 incentive stock option intended to qualify under
Section 422 of the Code.
(h) "NQO" means an option which does not qualify as an ISO.
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(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.
(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 "non-employee director" 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.
2
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5. Limitation on Shares Subject to the Plan
(a) Subject to adjustment as hereinafter provided, no more than 270,000
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 50,000 Shares during any period of 12 consecutive months (including
any repriced or reissued options).
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 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 and in the case of NQOs, be less than 85% of 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
3
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<PAGE>
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 (as determined by the Committee in its sole discretion), 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 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.
4
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(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, reorganization or
similar occurrence, to exercise any unexpired option rights granted hereunder
whether or not then exercisable.
<PAGE>
<PAGE>
(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
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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 Board 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:
(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 Board,
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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ARK RESTAURANTS CORP.
85 FIFTH AVENUE, 14TH FLOOR
NEW YORK, NEW YORK 10003
____________________
To: _______________________________
We are pleased to inform you that on __________, the Stock Option
Committee of the Board of Directors of Ark Restaurants Corp. (the "Company")
granted to you an option pursuant to the Company's 1996 Stock Option Plan (the
"Plan"), to purchase __________ shares of Common Stock, par value $.01 per
share, of the Company, at a price of $__________ per share. The options issued
hereby have been designated by the Stock Option Committee as non-qualified stock
options.
This option is issued in accordance with and is subject to and
conditioned upon all of the terms and conditions of the Plan (a copy of which is
attached hereto as Exhibit A) as from time to time amended, provided, however,
that no future amendment or termination of the Plan shall, without your consent,
alter in a manner adverse to you or impair any of your rights or obligations
under this option. Reference is made to the terms and conditions of the Plan,
all of which are incorporated by reference in this option agreement as if fully
set forth herein.
This option may be exercised, as to __________ of the shares covered
hereby commencing on __________, __________ of such shares commencing on
__________, and as to the balance of such shares commencing on __________. This
option, to the extent not previously exercised, will expire on __________.
Unless at the time of the exercise of this option a registration
statement under the Securities Act of 1933, as amended (the "Act"), is in effect
as to such shares, any shares purchased by you upon the exercise of this option
shall be acquired for investment and not for sale or distribution, and if the
Company so requests, upon any exercise of this option, in whole or in part, you
will execute and deliver to the Company a certificate to such effect. The
Company shall not be obligated to issue any shares pursuant to this option if,
in the opinion of counsel to the Company, the shares to be so issued are
required to be registered or otherwise qualified under the Act or under any
other applicable statute, regulation or ordinance affecting the sale of
securities, unless and until such shares have been so registered or otherwise
qualified.
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You understand and acknowledge that, under existing law, unless at the
time of the exercise of this option a registration statement under the Act is in
effect as to such shares: (i) any shares purchased by you upon exercise of this
option may be required to be held indefinitely unless such shares are
subsequently registered under the Act or an exemption from such registration is
available; (ii) any sales of such shares made in reliance upon Rule 144
promulgated under the Act may be made only in accordance with the terms and
conditions of that Rule (which, under certain circumstances, restrict the number
of shares which may be sold); (iii) in the case of securities to which Rule 144
is not applicable, compliance with Regulation A promulgated under the Act or
some other disclosure exemption will be required; (iv) certificates for shares
to be issued to you hereunder shall bear a legend to the effect that the shares
have not been registered under the Act and that the shares may not be sold,
hypothecated or otherwise transferred in the absence of an effective
registration statement under the Act relating thereto or an opinion of counsel
satisfactory to the Company that such registration is not required; (v) the
Company will place an appropriate "stock transfer" order with its transfer agent
with respect to such shares; and (vi) the Company has undertaken no obligation
to register the shares or to include the shares in any registration statement
which may be filed by it subsequent to the issuance of the shares to you. In
addition, you understand and acknowledge that the Company has no obligation to
furnish to you information necessary to enable you to make sales under Rule 144.
This option (or installment thereof) is to be exercised by delivering
to the Company a written notice of exercise in the form attached hereto as
Exhibit B, together with payment of the purchase price of the shares to be
purchased. The purchase price is to be paid in cash or, at the discretion of the
Stock Option Committee, by delivering shares of the Company's stock already
owned by you and having a fair market value on the date of exercise equal to the
exercise price of the option, or a combination of such shares and cash, or
otherwise in accordance with the Plan.
The Company may establish, from time to time, appropriate procedures to
provide for payment or withholding of such income or other taxes as may be
required by law to be paid or withheld in connection with the exercise of an
option. You shall pay the Company all such amounts requested by the Company to
permit the Company to take any deduction available to it resulting from the
exercise of an option. The Company may also establish, from time to time,
appropriate procedures to ensure that the Company receives prompt advice
concerning the occurrence of any event which may create, or affect the timing or
amount of, any obligation to pay or withhold any such taxes or which may make
available to the Company any tax deduction resulting from the occurrence of such
event, and you will comply with all such procedures so established.
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Kindly evidence your acceptance of this option and your agreement to
comply with the provisions hereof and of the Plan by executing this letter under
the words "Accepted and Agreed To."
Sincerely,
ARK RESTAURANTS CORP.
By: _________________________________
ACCEPTED AND AGREED TO:
__________________________
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Exhibit B
Ark Restaurants Corp.
85 Fifth Avenue
New York, New York 10003
Gentlemen:
Notice is hereby given of my election to purchase [ ] shares of Common
Stock, $.01 par value (the "Shares"), of Ark Restaurants Corp., at a price of
_________ per Share, pursuant to the provisions of the option granted to me on
____________ , under the Company's Stock Option Plan. Enclosed in payment for
the Shares is:
[ ] my check in the amount of $__________________.
[ ] _______ Shares having a total value of $_________, such value
being based on the closing price(s) of the Shares on the date
hereof.
The following information is supplied for use in issuing and
registering the Shares purchased hereby:
Number of Certificates
and Denominations ____________________
Name ____________________
Address ____________________
____________________
Social Security Number ____________________
Dated: _______________________
Very truly yours,
____________________
*Subject to the approval of the
Stock Option Committee.
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SHACK & SIEGEL, P.C.
530 FIFTH AVENUE
NEW YORK, NEW YORK 10036
(212) 782-0700
April 17, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Form S-8 Registration Statement
270,000 shares of Common Stock of
Ark Restaurants Corp.
-----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Ark Restaurants Corp., a New York
corporation (the "Company"), in connection with the filing with the Securities
and Exchange Commission of a registration statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to 270,000 shares of the Company's Common Stock, par
value $.01 per share ("Common Stock"), which may be issued and sold pursuant to
the Company's 1996 Stock Option Plan (the "Plan").
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction, of
(i) the Plan; (ii) the Registration Statement; (iii) the Certificate of
Incorporation, as amended, of the Company; (iv) the By-Laws of the Company, as
restated on October 15, 1985 and amended on February 12, 1988; and (v) such
other documents as we have deemed necessary or appropriate as a basis for the
opinion set forth below. In our examination, we have assumed the genuineness of
all signatures, the legal capacity of all natural persons, the authenticity of
all documents submitted to us as originals, the conformity to the original
documents of all documents submitted to us as certified or photostatic copies
and the authenticity of the originals of such latter documents. As to any facts
material to this opinion that we did not independently establish or verify, we
have relied upon statements and representations of officers and other
representatives of the Company and others.
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Based upon and subject to the foregoing, we are of the opinion that the
shares of Common Stock reserved for issuance upon the exercise of options have
been duly authorized and that such shares of Common Stock, when issued and
delivered upon exercise of the options granted in accordance with the terms of
the Plan, and assuming full payment for the shares of Common Stock thereby
issued, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
The law covered by the opinions expressed herein is limited to the
corporate laws of the State of New York.
Very truly yours,
SHACK & SIEGEL, P.C.
By: /s/ Paul S. Goodman
-------------------------------
Paul S. Goodman
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CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the 1996 Stock Option Plan of Ark Restaurants Corp. of
our report dated December 6, 1996, appearing in the Annual Report on Form 10-K
for the year ended September 28, 1996.
DELOITTE & TOUCHE LLP
New York, New York
April 7, 1997
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