<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:
[X] Preliminary proxy statement
[ ] 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] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1)
and 0-11.
(1) Title of each class of securities to which transaction
applies:
- --------------------------------------------------------------------------------
(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:
- --------------------------------------------------------------------------------
(5) Total fee paid:
- --------------------------------------------------------------------------------
[ ] Fee paid previously with preliminary materials
- --------------------------------------------------------------------------------
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for which
the offsetting fee was paid previously. Identify the previous
filing by registration statement number, or the form or schedule
and the date of its filing.
(1) Amount previously paid:
- --------------------------------------------------------------------------------
(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 18, 1997
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 18, 1997 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 eight directors;
(2) To approve 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;
(3) To approve 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;
(4) To ratify the appointment of Deloitte & Touche LLP as independent
auditors for the 1997 fiscal year;
(5) 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 10,
1997 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 12, 1997
<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 18, 1997 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 an amendment to the Plan to
increase the maximum number of shares of Common Stock which may be issued under
the Plan from 135,000 to 270,000; (iii) IN FAVOR 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) 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 amendment to the Plan requires the affirmative vote of the
holders of a majority of votes cast at the Meeting in person or by proxy.
Approval of the amendment to the Company's certificate of incorporation requires
the affirmative vote of the holders of a majority of the outstanding shares of
Common Stock. 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 12, 1997. 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 10, 1997 will be entitled to notice of and to vote at the
Meeting. On that date 3,814,999 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 10, 1997
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) 26.8%
85 Fifth Avenue
New York, New York 10003
FMR Corp........................................ 222,600(3) 5.8%
82 Devonshire Street
Boston, Massachusetts 02109
Bruce R. Lewin.................................. 210,000(4) 5.0%
c/o Lewin Art, Inc.
150 East 69th Street
New York, New York 10021
Vincent Pascal.................................. 79,930(5) 2.1%
85 Fifth Avenue
New York, New York 10003
Robert Towers................................... 71,200(6) 1.9%
85 Fifth Avenue
New York, New York 10003
Donald D. Shack................................. 42,603(7) 1.1%
530 Fifth Avenue
New York, New York 10036
Andrew Kuruc.................................... 30,250(8) Less than 1%
85 Fifth Avenue
New York, New York 10003
Jay Galin....................................... 26,000 Less than 1%
520 Eighth Avenue
New York, New York 10018
Ernest Bogen.................................... 17,320(9) Less than 1%
85 Fifth Avenue
New York, New York 10003
Paul Gordon..................................... 5,500(10) Less than 1%
85 Fifth Avenue
New York, New York 10003
All directors and officers as a group (seven persons) 1,296,791(11) 33.6%
</TABLE>
- --------------
-2-
<PAGE>
<PAGE>
(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 36,000 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 Minors Act, and 6,500 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 12, 1996.
Fidelity Management & Research Company ("Fidelity"), a wholly-owned
subsidiary of FMR Corp., is the beneficial owner of 222,600 shares or 6.8%
of the Common Stock of the Company as a result of acting as investment
adviser to several investment companies. The ownership by one investment
company, Fidelity Low Priced Stock Fund, amounted to 222,600 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
222,600 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 16,500 shares issuable upon exercise of currently exercisable
stock options granted under the Company's 1985 Stock Option Plan.
(6) Includes 6,500 shares issuable upon exercise of currently exercisable stock
options granted under the Company's 1985 Stock Option Plan.
(7) Includes 40,000 shares owned by Skylark Partners, a partnership of which
Mr. Shack is a general partner.
(8) Includes 8,750 shares issuable upon exercise of currently exercisable stock
options granted under the Company's 1985 Stock Option Plan.
(9) Includes 7,320 owned by Mr. Bogen's spouse, as to which Mr. Bogen disclaims
beneficial ownership.
(10) Includes 3,750 shares issuable upon exercise of currently exercisable stock
options granted under the Company's 1985 Stock Option Plan.
(11) Includes 42,000 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 eight 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 65 Chairman of the Board of the Company 1983
Michael Weinstein 53 President of the Company 1983
Vincent Pascal 53 Vice President and Secretary of the Company 1985
Robert Towers 49 Vice President and Treasurer of the Company 1987
Andrew Kuruc 39 Vice President and Controller of the Company 1989
Paul Gordon 45 Vice President of the Company 1996
Donald D. Shack 68 Attorney, member of law firm of Shack & Siegel, 1985
P.C., general counsel to the Company
Jay Galin 60 President, G. & G. Shops, Inc. 1988
</TABLE>
- -------
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. 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.
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. Mr. Weinstein spends
substantially all of his business time on Company-related matters.
VINCENT PASCAL was elected Vice President and a director of the Company in
October 1985. Mr. Pascal became Secretary of the Company in January 1994.
ROBERT TOWERS has been employed by the Company since November 1983 and was
elected Vice President, Treasurer and a director in March 1987.
-4-
<PAGE>
<PAGE>
ANDREW KURUC was elected Vice President of the Company in 1993 and a
director of the Company in November 1989. Mr. Kuruc has been employed as
Controller of the Company since April 1987.
PAUL GORDON has been employed by the Company since 1983 and was elected as
a director in November 1996. Mr. Gordon is the manager of the Company's
Las Vegas operations and Vice President of the Company's Las Vegas
subsidiaries. Prior to assuming that role in 1996, Mr. Gordon was the
manager of the Company's operations in Washington, D.C. commencing in 1989.
DONALD D. SHACK was elected a director of the Company in October 1985.
Since April 1993, Mr. Shack has been a member of the law firm of Shack &
Siegel, P.C., general counsel to the Company. From January 1990 to April
1993, Mr. Shack was a member of the law firm of Whitman & Ransom, which
firm was general counsel to the Company during that time. Mr. Shack is also
a director of the following publicly-held companies: Andover Togs, Inc.,
International Citrus Corporation and Just Toys, Inc.
JAY GALIN was elected a director of the Company in January 1988. 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.
The Company made loans to Robert Towers and Vincent Pascal, which loans
were made 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 are payable on demand. During fiscal
1996, the largest amount of indebtedness of Mr. Towers outstanding at any one
time was $359,882. As of January 24, 1997, Mr. Towers was indebted to the
Company in the amount of $261,082. During fiscal 1995, the largest amount of
indebtedness of Mr. Pascal outstanding at any one time was $112,773. As of
January 24, 1997, Mr. Pascal was indebted to the Company in the amount of
$90,773.
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 did not meet 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 held one meeting 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 at least 75% of the meetings of the Board and
committees on which he served.
-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 1996, 1995 and 1994 fiscal years, of those persons who
were, at September 28, 1996, (i) President and Chief Executive Officer of the
Company and (ii) the other three most highly compensated executive officers of
the Company. No other executive officer of the Company received a salary in
excess of $100,000 in fiscal 1996.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
ANNUAL LONG-TERM
COMPENSATION COMPENSATION
------------ ------------
NAME AND PRINCIPAL POSITION YEAR SALARY ($) OPTIONS AWARDED (#)
--------------------------- ---- ---------- -------------------
<S> <C> <C> <C>
Michael Weinstein.................................... 1996 316,950 ---
President and Chief Executive Officer 1995 316,950 13,000
1994 316,950 ---
Vincent Pascal ...................................... 1996 160,900 ---
Vice President and Secretary 1995 163,994 13,000
1994 149,400 ---
Robert Towers......................................... 1996 154,900 ---
Vice President and Treasurer 1995 154,900 13,000
1994 154,900 ---
Andrew Kuruc......................................... 1996 137,012 ---
Vice President and Controller 1995 140,000 7,500
1994 140,000 ---
</TABLE>
-7-
<PAGE>
<PAGE>
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR
AND FISCAL YEAR END OPTION VALUES
The table shown below sets forth certain information at September 28,
1996 with respect to unexercised options to purchase shares of the Company's
Common Stock under the Company's 1985 Stock Option Plan for the President and
Chief Executive Officer of the Company and the other three most highly
compensated executive officers of the Company during the past fiscal year.
<TABLE>
<CAPTION>
SHARES NUMBER OF UNEXERCISED IN- VALUE OF UNEXERCISED IN-THE-
ACQUIRED VALUE THE-MONEY OPTIONS AT FISCAL MONEY OPTIONS AT FISCAL
NAME ON EXERCISE REALIZED YEAR-END YEAR-END (1)
---- ----------- -------- -------- ------------
EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
MICHAEL --- --- 6,500 6,500 $60,125 $60,125
WEINSTEIN........
VINCENT 20,000 $ 80,000 16,500 6,500 152,625 60,125
PASCAL...........
ROBERT 30,000 128,750 6,500 6,500 60,125 60,125
TOWERS ..........
ANDREW 2,500 13,125 8,750 3,750 80,938 34,688
KURUC............
</TABLE>
(1) Based on the closing sale price on the NASDAQ/National Market System of
the Company's Common Stock on September 28, 1996.
-8-
<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 October 4, 1991
and ending September 28, 1996 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 October 4, 1991 and that all dividends paid by companies
included in each index were reinvested.
[The Performance Graph is being filed in tabular form
pursuant to Item 304(d) of Regulation S-T.]
<TABLE>
<CAPTION>
===================================================================================================================
9/27/91 10/2/92 10/1/93 9/30/94 9/29/95 9/27/96
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Ark Restaurants $100.00 145.30 231.30 187.50 250.00 231.30
Corp.
- -------------------------------------------------------------------------------------------------------------------
Market Index - $100.00 110.30 147.40 148.70 205.40 244.50
Nasdaq Stock Market
(US Companies)
- -------------------------------------------------------------------------------------------------------------------
Peer Index- $100.00 120.70 152.20 143.30 176.70 201.10
NASDAQ/NYSE/A
MEX Stocks
(SIC 5800-5899;
US Companies)
===================================================================================================================
</TABLE>
The foregoing graph shall not be deemed to be incorporated by reference
into any filing of the Company under the Securities Act of 1933, as amended, or
the Securities Exchange Act of 1934, as amended, except to the extent that the
Company specifically incorporates such information by reference.
-9-
<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 27% 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 and 1996. 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 October 1994, he received options to purchase an additional 13,000
shares of Common Stock.
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.
-10-
<PAGE>
<PAGE>
PROPOSAL 2: AMENDMENT TO THE COMPANY'S 1996 STOCK OPTION PLAN
The Board has approved and recommended for submission to the Company's
shareholders an amendment to the Plan that would increase the maximum number of
shares of Common Stock which may be issued under the Plan from 135,000 to
270,000. Options in respect of all of the 135,000 shares currently authorized to
be issued under the Plan have been granted. The Board believes that additional
shares should be authorized to enable the Company to continue to achieve the
objectives of the Plan. Accordingly, the Board has approved and recommends for
submission to the Company's shareholders an amendment to the Plan that would
increase the aggregate number of shares of Common Stock which may be issued
under the Plan from 135,000 to 270,000. The 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 PLAN
The 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 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 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 Plan; (iii) permit the grant
of any incentive stock option under the 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 Plan.
Unless the Plan is terminated earlier by the Board, the 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 270,000 shares
of Common Stock may be issued pursuant to the exercise of options granted under
the 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 Plan.
-11-
<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 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 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
Plan. 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.
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 not be less than 85% of 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 Plan, the
Committee may 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.
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TERMS OF OPTIONS
The Committee has the discretion to fix the term of each option granted
under the Plan, except that the maximum length of term of each option is 10
years, subject to earlier termination as provided in the 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 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 on 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(b) 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
Plan is subject to tax reporting and 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 reporting 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(b) 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 with respect to
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
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<PAGE>
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.
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 reporting 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 adjusted
basis of such shares. 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
26% of alternative minimum taxable income up to $175,000 and 28% of such income
above $175,000 over the regular income tax, in each case subject to various
adjustments and exemptions.
DEDUCTIONS FOR FEDERAL INCOME TAX PURPOSES
Pursuant to the Omnibus Budget Reconciliation Act of 1993, for fiscal
years beginning on and 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
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of shares with respect to which options may be granted during a specified period
to any employee. Currently the Company does not have any employees earning in
excess of $1,000,000.
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 amendment to the Plan. The Board recommends a vote FOR the following
resolution:
"RESOLVED, that the Company's 1996 Stock Option Plan be amended to
increase the maximum number of shares of Common Stock available for
issuance thereunder from 135,000 to 270,000."
PROPOSAL 3: AMENDMENT TO CERTIFICATE OF
INCORPORATION TO CREATE PREFERRED STOCK
GENERAL
The Board of Directors of the Company has adopted a resolution
unanimously approving and recommending to the Company's shareholders for their
approval, an amendment to Paragraph 4 of the Company's certificate of
incorporation to provide for the creation of one million (1,000,000) shares of
preferred stock, par value $.01 per share ("Preferred Stock"). The text of the
proposed amendment is annexed to this proxy statement as Exhibit A (the
"Amendment").
The Company's certificate of incorporation does not currently authorize
the issuance of shares of preferred stock. The Amendment would authorize the
shares of Preferred Stock which the Company would have available for issuance in
the future without the necessity of obtaining further shareholder approval.
The Board of Directors believes the creation of the Preferred Stock is
in the best interest of the Company and its shareholders and believes it
advisable to authorize such shares.
BOARD'S AUTHORITY TO ISSUE PREFERRED STOCK
The Amendment would vest in the Board of Directors the authority
(without further action by the shareholders) to issue up to one million
(1,000,000) shares of Preferred Stock in one or more series, to designate the
number of shares constituting any series, and to fix, by resolution, the voting
powers, designations, preferences and relative, optional or other special rights
thereof, including liquidation preferences and the dividend, conversion and
redemption rights of each such series. If the resolutions establishing the
series so provide, holders of any series of Preferred Stock may have the right
to receive a liquidating distribution before any distribution is made to holders
of Common Stock upon liquidation, and holders of Preferred Stock may be entitled
to receive all dividends to which they are entitled before any dividends may be
paid to holders of Common Stock. Holders of each series of Preferred Stock will
have such voting rights (which may include special rights regarding election of
directors) as may be provided in the resolutions establishing such series. Any
Preferred Stock which is issued will be ranked senior to the Common Stock. The
shares of Preferred Stock will not be set aside for any specified purpose, but
will be subject to issuance at the discretion of the Board of Directors from
time to time for any proper corporate
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purposes and without any further shareholder approval. The Board of Directors is
required to make any determination to issue shares of Preferred Stock based upon
its judgment as to the best interest of the Company and its stockholders.
Holders of Common Stock do not have any preemptive rights to acquire Preferred
Stock or any other securities of the Company.
POSSIBLE EFFECTS OF ISSUANCE OF PREFERRED STOCK
The Amendment is not designed to deter or prevent a change in control of
the Company. However, under certain circumstances, the Board of Directors could
create impediments to, or frustrate persons seeking to effect, a takeover or
transfer of control of the Company by causing such shares to be issued to a
holder or holders who might side with the Board of Directors in opposing a
takeover bid that the Board of Directors determines is not in the best interest
of the Company and its shareholders. Such action may have an adverse impact on
shareholders who may want to accept such takeover bid. In this connection, the
Board of Directors could, publicly or privately, issue shares of Preferred Stock
with full voting rights to a holder that would thereby have sufficient voting
power to insure that certain types of proposals (including any proposal to
remove directors, to accomplish certain business combinations opposed by the
Board of Directors, or to alter, amend or repeal provisions in the certificate
of incorporation or Bylaws relating to any such action) would not receive the
requisite shareholder vote. Furthermore, the existence of such shares might have
the effect of discouraging any attempt by a person or entity to acquire control
of the Company since the issuance of such shares could dilute the ownership of
such person or entity. The Company is not contemplating the issuance of any
Preferred Stock which may make more difficult a change in control of the
Company, nor is the Company aware of any proposals relating to a possible change
in control of the Company.
BENEFITS OF AVAILABILITY OF PREFERRED STOCK
The Board of Directors believes that the availability of Preferred Stock
provides the Company with the flexibility to address potential future financing
needs by creating Preferred Stock customized to meet the needs of any particular
transaction and market conditions without having to incur possible delays and
expenses associated with obtaining shareholder approval. The Company also could
issue Preferred Stock for other corporate purposes, such as to implement joint
ventures or to make acquisitions. The Company currently has no agreements or
understandings with respect to the issuance of shares of Preferred Stock. The
terms of Preferred Stock subject to issuance upon adoption of this proposal and
the actual effect of the issuance of Preferred Stock on the rights of holders of
Common Stock cannot be stated or estimated.
REQUIRED VOTE
The affirmative vote of holders of a majority of the shares of Common
Stock outstanding and entitled to vote on this matter is required to approve the
Amendment pursuant to the following resolution:
"RESOLVED, that Paragraph 4 of the Company's certificate of
incorporation be amended to read in its entirety as set forth in Exhibit
A to the Company's proxy statement, dated February 12, 1997."
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE APPROVAL OF THE AMENDMENT.
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PROPOSAL 4: 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 27, 1997. 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 1996.
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, 3 and 4. Votes
withheld in connection with the election of one or more of the nominees for
director will not be counted in determining the votes cast and will have no
effect on the vote. Abstentions and broker non-votes in connection with the
approval of the amendment to the Plan and the amendment to the Certificate 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 1998 Annual Meeting of Shareholders, shareholder proposals should
be received by the Company on or before October 15, 1997.
ANNUAL REPORT
The 1996 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, 1997.
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 28, 1996, INCLUDING
FINANCIAL STATEMENTS AND SCHEDULES THERETO, TO EACH OF THE COMPANY'S
SHAREHOLDERS OF RECORD ON FEBRUARY 10, 1997 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 12 1997
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EXHIBIT A
AMENDMENT
TO PARAGRAPH 4 OF THE CERTIFICATE OF INCORPORATION
OF ARK RESTAURANTS CORP.
If Proposal 3 is approved by shareholders, Paragraph 4 of the
Certificate of Incorporation of the Corporation will be amended to read in its
entirety as follows:
"4. 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:
(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;
A-1-
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(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, 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.
(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
A-2
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<PAGE>
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.
(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
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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."
A-4
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<PAGE>
ANNEX 1
ARK RESTAURANTS CORP.
PROXY SOLICITED BY THE BOARD OF DIRECTORS
FOR THE ANNUAL MEETING OF SHAREHOLDERS
MARCH 18, 1997
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 18, 1997 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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[ ] __________________________ ______________
ACCOUNT NUMBER COMMON
(1) Election of a board of seven directors
<TABLE>
<CAPTION>
WITHHOLD AUTHORITY
Nominee VOTE FOR TO VOTE FOR
------- -------- -----------
<S> <C> <C>
Ernest Bogen [ ] [ ]
Michael Weinstein [ ] [ ]
Vincent Pascal [ ] [ ]
Robert Towers [ ] [ ]
Andrew Kuruc [ ] [ ]
Donald D. Shack [ ] [ ]
Jay Galin [ ] [ ]
Paul Gordon [ ] [ ]
</TABLE>
(2) Approval of the amendment to the Company's 1996 Stock Option Plan.
FOR [ ] AGAINST [ ] ABSTAIN [ ]
(3) Approval of the amendment to the Company's Certificate of Incorporation.
FOR [ ] AGAINST [ ] ABSTAIN [ ]
(4) Ratification of the appointment of Deloitte & Touche LLP as independent
auditors for the 1997 fiscal year.
FOR [ ] AGAINST [ ] ABSTAIN [ ]
(5) 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, 3 and 4.
Dated:______________
___________________,
1997
____________________
____________________
_________
NOTE: Please sign
exactly as your name
or names appear
hereon. Joint owners
should each sign
personally. When
<PAGE>
<PAGE>
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>
