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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 (Amendment No. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
| [_] | Preliminary Proxy Statement |
| [_] | CONFIDENTIAL, FOR USE OF THE COMMISSION ONLY (as permitted by Rule 14a-6(e)(2)) |
| [X] | Definitive Proxy Statement |
| [_] | Definitive Additional Materials |
| [_] | Soliciting Material Pursuant to § 240.14a-12 |
ARK RESTAURANTS CORP.
| (Name of Registrant as Specified In Its Charter) |
| (Name of Person(s) Filing Proxy Statement, if Other Than the Registrant) |
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 transaction applies: | |
| 3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): | |
| 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: | |
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
To Be Held on March 24, 2009
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 24, 2009 at 10:00 A.M., New York City time, at Bryant Park Grill, located at 25 West 40th Street, New York, New York, for the following purposes:
| (1) |
To elect a board of nine directors; |
| (2) |
To ratify the appointment of J.H. Cohn LLP (“Cohn”) as independent auditors for the 2009 fiscal year; and |
| (3) |
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, 2009 as the record date for the determination of shareholders entitled to notice of, and to vote at, the meeting. All shareholders are cordially invited to attend.
YOU ARE 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, |
|
| Michael P. Buck Secretary and General Counsel |
TABLE OF CONTENTS |
||
| ANNUAL MEETING INFORMATION |
1 |
|
| CORPORATE GOVERNANCE; DIRECTOR AND COMMITTEE INFORMATION |
4 |
|
| PROPOSAL 1 — ELECTION OF DIRECTORS |
5 |
|
| EXECUTIVE OFFICER |
7 |
|
| PROPOSAL 2: RATIFICATION OF APPOINTMENT OF INDEPENDENT AUDITOR |
7 |
|
| AUDIT COMMITTEE REPORT |
7 |
|
| AUDIT FEES AND SERVICES |
8 |
|
| EXECUTIVE COMPENSATION |
9 |
|
| SUMMARY COMPENSATION TABLE |
9 |
|
| OUTSTANDING EQUITY AWARDS AT FISCAL YEAR-END TABLE |
10 |
|
| DIRECTOR COMPENSATION |
10 |
|
| STOCK OWNERSHIP INFORMATION |
11 |
|
| SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE |
13 |
|
| CERTAIN RELATIONSHIPS AND RELATED PERSON TRANSACTIONS |
13 |
|
| ADDITIONAL INFORMATION |
14 |
ARK RESTAURANTS CORP.
_______________
PROXY STATEMENT
_______________
ANNUAL MEETING INFORMATION
This proxy statement contains information related to the annual meeting of shareholders of Ark Restaurants Corp. (“Ark” or the “Company”) to be held at Bryant Park Grill, located at 25 West 40th Street, New York, New York, at 10:00 A.M., New York City time, on March 24, 2009 and at any adjournment or adjournments thereof (the “Meeting”). This proxy statement was prepared under the direction of our Board of Directors (the “Board of Directors” or the “Board”) to solicit your proxy for use at the annual meeting. It will be mailed to shareholders on or about February 17, 2009.
Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting to be Held on March 24, 2009
This Proxy Statement, the form of proxy and the Company’s Annual Report are available at www.cstproxy.com/arkrestaurants/2009.
Who may attend the annual meeting?
All shareholders of record at the close of business on February 10, 2009 (the “Record Date”), or their duly appointed proxies, and our invited guests may attend the Meeting.
Who may vote?
You may vote if you owned our common stock as of the close of business on the Record Date. Each share of our common stock is entitled to one vote. As of the Record Date, there were 3,489,845 shares of common stock outstanding and entitled to vote at the Meeting.
What will I be voting on?
You will be voting on the following:
The election of nine (9) directors for a term to expire at the next annual meeting of shareholders; and
The ratification of the selection of J.H. Cohn LLP (“Cohn”) as our independent registered public accounting firm for fiscal 2009.
What are the voting recommendations of the Board of Directors?
The Board of Directors recommends that you vote your shares “FOR” each of the nominees named in this proxy statement for election to the Board and “FOR” ratification of the selection of Cohn as our independent registered public accounting firm for fiscal 2009.
How do I vote?
Return Your Proxy Card By Mail: You may vote by completing, signing and returning the enclosed proxy card in the postage-paid envelope provided with this proxy statement. The proxy holders will vote your shares according to your directions. If you sign and return your proxy card without specifying choices, your shares will be voted by the persons named in the proxy in accordance with the recommendations of the Board of Directors as set forth in this proxy statement.
Vote at the Meeting: You may cast your vote in person at the Meeting. Written ballots will be passed out to anyone who wants to vote in person at the meeting.
Even if you plan to attend the meeting, you are encouraged to vote your shares by proxy. You may still vote your shares in person at the Meeting even if you have previously voted by proxy. If you are present at the Meeting and desire to vote in person, your vote by proxy will not be used.
What if I hold my shares in “street name”?
You should follow the voting directions provided by your broker or nominee. You may complete and mail a voting instruction card to your broker or nominee or, in most cases, submit voting instructions by telephone or the Internet to your broker or nominee. If you provide specific voting instructions by mail, telephone or the Internet, your broker or nominee will vote your shares as you have directed.
Can I change my mind after I vote?
Yes. If you are a shareholder of record, you may change your vote or revoke your proxy at any time before it is voted at the Meeting by:
signing another proxy card with a later date and returning it to us prior to the Meeting;
giving written notice of revocation to Ark Restaurants Corp., Attention Treasurer, 85 Fifth Avenue, New York, NY 10003; or
attending the Meeting and voting in person.
If you hold your shares in street name, you may submit new voting instructions by contacting your broker, bank or other nominee. You may also vote in person at the Meeting if you obtain a legal proxy from your broker, bank or other nominee.
Who will count the votes?
A representative of our Transfer Agent will count the votes and will serve as the independent inspector of elections.
Will my shares be voted if I do not provide my proxy?
If you are the shareholder of record and you do not vote or provide a proxy, your shares will not be voted.
Under the rules of various national and regional securities exchanges, brokers may generally vote on routine matters, such as the election of directors, but cannot vote on non-routine matters, such as an amendment to the Articles of Incorporation or the adoption or amendment of a stock option plan, unless they have received voting instructions from the person for whom they are holding shares. If your broker does not receive instructions from you on how to vote particular shares on matters on which your broker does not have discretionary authority to vote, your broker will return the proxy form to us, indicating that he or she does not have the authority to vote on these matters. This is generally referred to as a “broker non-vote” and will affect the outcome of the voting as described below, under “What vote is required to approve each proposal?” Therefore, we encourage you to provide directions to your broker as to how you want your shares voted on all matters to be brought before the meeting. You should do this by carefully following the instructions your broker gives you concerning its procedures. This ensures that your shares will be voted at the meeting.
How many votes must be present to hold the meeting?
A majority of the outstanding shares entitled to vote at the Meeting, represented in person or by proxy, will constitute a quorum. Shares of common stock represented in person or by proxy, including shares which abstain or do not vote with respect to one or more of the matters presented for shareholder approval, will be counted for purposes of determining whether a quorum is present.
2
What vote is required to approve each proposal?
In accordance with our bylaws, the nominees for director receiving the highest number of votes cast in person or by proxy at the Meeting (also referred to as a plurality of the votes cast) will be elected. Broker non-votes will not be counted as entitled to vote, but will count for purposes of determining whether or not a quorum is present on the matter. Therefore, a broker non-vote has no effect on the election of directors. Other issues are determined by a majority of votes cast. If you mark your proxy to withhold your vote for a particular nominee on your proxy card, your vote will not count either “for” or “against” the nominee.
Shares that abstain from voting as to a particular matter will not be counted as votes in favor of such matter, and also will not be counted as votes cast or shares voting on such matter. Accordingly, abstentions will not be included in vote totals and will not affect the outcome of the voting for either proposal.
Who will pay for this proxy solicitation?
We will bear the cost of preparing, assembling and mailing the proxy material and of reimbursing brokers, nominees, fiduciaries and other custodians for out-of-pocket and clerical expenses of transmitting copies of the proxy material to the beneficial owners of our shares. A few of our officers and employees may participate in the solicitation of proxies without additional compensation.
Will any other matters be voted on at the Meeting?
As of the date of this proxy statement, our management knows of no other matter that will be presented for consideration at the Meeting other than those matters discussed in this proxy statement. If any other matters properly come before the Meeting and call for a vote of shareholders, validly executed proxies in the enclosed form returned to us will be voted in accordance with the recommendation of the Board of Directors, or, in the absence of such a recommendation, in accordance with the judgment of the proxy holders.
What are the deadlines for stockholder proposals for next year’s Meeting?
Stockholders may submit proposals on matters appropriate for stockholder action at future annual meetings by following the rules of the Securities and Exchange Commission. Proposals intended for inclusion in next year’s proxy statement and proxy card must be received by not later than September 26, 2009. All proposals and notifications should be addressed to Ark Restaurants Corp., Attention Treasurer, 85 Fifth Avenue, New York, NY 10003.
Where can I find the voting results?
The preliminary voting results will be announced at the Meeting. The final results will be published in our quarterly report on Form 10-Q for the second quarter of fiscal 2009.
What is the Company’s website address?
Our website address is www.arkrestaurants.com. We make this proxy statement, our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) available on our website in the About Ark - SEC Filings section, as soon as reasonably practicable after electronically filing such material with the United States Securities and Exchange Commission (“SEC”).
This information is also available free of charge at the SEC’s website located at www.sec.gov. Shareholders may also read and copy any reports, statements and other information filed by us with the SEC at the SEC public reference room at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 or visit the SEC’s website for further information on its public reference room.
The references to our website address and the SEC’s website address do not constitute incorporation by reference of the information contained in these websites and should not be considered part of this document.
3
CORPORATE GOVERNANCE; DIRECTOR AND COMMITTEE INFORMATION
Corporate Governance
We seek to follow best practices in corporate governance in a manner that is in the best interests of our business and stockholders. Our current corporate governance principles, including the Code of Ethics and the charters of each of the Audit Committee and Nominating and Governance Committee are all available under About Ark -- Corporate Governance on our website at www.arkrestaurants.com. We are in compliance with the corporate governance requirements imposed by the Sarbanes-Oxley Act, the Securities and Exchange Commission and the NASDAQ Marketplace Rules. We will continue to modify our policies and practices to meet ongoing developments in this area. Aspects of our corporate governance principles are discussed throughout this Proxy Statement.
Director Independence
The Board has determined that each of the following directors is an “independent director” as such term is defined in NASDAQ Marketplace Rule 4200(a)(15): Bruce R. Lewin, Marcia Allen, Steven Shulman, Arthur Stainman and Stephen Novick.
Board and Committee Meeting Attendance
During the past year, the Board held five meetings. Each member of the Board attended at least 75% of the meetings of the Board and committees on which he or she served. Independent directors meet at least twice per year without management present.
Board Committees
The Board has delegated various responsibilities and authority to different Board committees. The Board has three standing committees: the Compensation Committee, the Audit Committee and the Nominating and Corporate Governance Committee. The Board has appointed only independent directors to such committees. The members of each committee are appointed by the Board and serve one year terms. Committees regularly report on their activities and actions to the full Board of Directors. Each committee has a written charter adopted by the Board of Directors under which it operates.
Compensation Committee
Ms. Allen (Chairperson) and Messrs. Shulman and Stainman currently serve as members of the Compensation Committee of the Board. The Compensation Committee: (i) oversees and sets the compensation and benefits arrangements of our Chief Executive Officer and certain other executives; (ii) provides a general review of, and makes recommendations to, the Board of Directors or to our shareholders with respect to our equity-based compensation plans; and (iii) implements, administers, operates and interprets all equity-based and similar compensation plans to the extent provided under the terms of such plans..
The Board of Directors adopted a written charter under which the Compensation Committee operates. The Compensation Committee held two meetings in 2008.
Audit Committee
Messrs. Lewin (Chairperson) and Stainman and Ms. Allen currently serve as members of the Audit Committee of the Board of Directors. The Audit Committee is responsible for, among other things, and engaging the independent auditors, receiving and reviewing the recommendations of the independent auditors, reviewing consolidated financial statements of the Company, meeting periodically with the independent auditors and Company personnel with respect to the adequacy of internal accounting controls, resolving potential conflicts of interest and reviewing Company’s accounting policies.
The Board of Directors has determined that all of the members of the Audit Committee meet the independence criteria for audit committees and have the qualifications set forth in the listing standards of NASDAQ and Rule 10A-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Board of Directors has also designated Ms. Allen as an audit committee financial expert within the meaning of Item 401(h) of
4
Regulation S-K under the Exchange Act and the Board of Directors has determined that she has the financial sophistication required under the listing standards of NASDAQ.
The Board of Directors adopted a written charter under which the Audit Committee operates. The Board of Directors reviews and assesses the adequacy of the charter of the Audit Committee on an annual basis.
The Audit Committee held five meetings during 2008.
Nominating and Corporate Governance Committee
Messrs. Novick (Chairperson), Stainman and Lewin currently serve as members of the Nominating and Corporate Governance Committee of the Board. The Board of Directors adopted a written charter under which the Nominating and Corporate Governance Committee operates. The Nominating and Corporate Governance Committee approved the nomination of the candidates reflected in Proposal One, which candidates were approved by the Board of Directors.
The duties of the Nominating and Corporate Governance Committee are to recommend to the Board nominees to the Board of Directors and its standing committees. Although the Nominating and Corporate Governance Committee has not established minimum qualifications for director candidates, it will consider, among other factors:
Judgment
Skill
Diversity
Experience with businesses and other organizations of comparable size
The interplay of the candidate’s experience with the experience of other Board members
The extent to which the candidate would be a desirable addition to the Board and any committees of the Board
The Nominating and Corporate Governance Committee will consider all director candidates recommended by stockholders. Any stockholder who desires to recommend a director candidate may do so in writing, giving each recommended candidate’s name, biographical data and qualifications, by mail addressed to the Chairman of the Nominating and Corporate Governance Committee, in care of Ark Restaurants Corp., 85 Fifth Avenue, New York, New York 10003. Members of the Nominating and Corporate Governance Committee will assess potential candidates on a regular basis.
The Nominating and Corporate Governance Committee held one meeting in 2008.
PROPOSAL 1: ELECTION OF DIRECTORS
Our Amended and Restated Certificate of Incorporation provides that the number of directors constituting the Board of Directors shall not be fewer than three nor more than 15, with the exact number to be fixed by a resolution adopted by the affirmative vote of a majority of the Board. The Board of Directors has fixed the number of directors at nine. The term of office of each director is one year, commencing at this annual meeting and ending at the annual meeting of shareholders to be held in 2009. Each director elected will continue in office until he resigns or until a successor has been elected and qualified. Stockholders cannot vote or submit proxies for a greater number of persons than the nine nominees named in this Proposal One.
Each of the nominees named below is at present a director of the Company and has consented to serve if elected. If any nominee should be unable to serve or will not serve for any reason, the persons designated on the accompanying form of proxy will vote in accordance with their judgment. We know of no reason why the nominees would not be able to serve if elected.
5
| Name | Age |
Principal Occupation and Position with the Company |
Director | |||
| Company | Since | |||||
| Michael Weinstein | 65 | Chairman of the Board and Chief Executive Officer of | 1983 | |||
| the Company | ||||||
| Robert Towers | 61 | President, Chief Operating Officer and Treasurer of the | 1987 | |||
| Company | ||||||
| Vincent Pascal | 65 | Senior Vice President of the Company | 1985 | |||
| Paul Gordon | 57 | Senior Vice President of the Company | 1996 | |||
| Marcia Allen | 58 | Chief Executive Officer, Allen & Associates | 2003 | |||
| Bruce R. Lewin | 61 | Chairman and President, Continental Hosts, Ltd. | 2000 | |||
| Steven Shulman | 67 | Managing Director, Hampton Group Inc. | 2003 | |||
| Arthur Stainman | 66 | Senior Managing Director, First Manhattan Co. | 2004 | |||
| Stephen Novick |
68 |
Senior Advisor, Andrea and Charles Bronfman | 2005 | |||
| Philanthropies |
Biographical Information
Michael Weinstein has been our Chief Executive Officer and a director since our inception in January 1983, was elected Chairman in 2004 and was President of the Company from January 1983 to September 2007. Mr. Weinstein is also the President of each of our subsidiaries. During the past five years, Mr. Weinstein has been an officer, director and 25% shareholder of Easy Diners, Inc., a restaurant management company which operated a restaurant in New York City until January 31, 2002. Mr. Weinstein is also a director and 25% shareholder of RSWB Corp. and BSWR Corp. (since April 1998) each of which operates a restaurant in New York City. Mr. Weinstein is also the owner of 24% of the membership interests of each of Dockeast, LLC and Dockwest, LLC, each of which operates a restaurant in New York City. Easy Diners, Inc., RSWB Corp., Dockeast, LLC, Dockwest, LLC and BSWR Corp. are not subsidiaries or affiliates of the Company. Mr. Weinstein spends substantially all of his business time on Company-related matters.
Robert Towers has been employed by us since November 1983 and was elected Vice President, Treasurer and a director in March 1987. Mr. Towers became Executive Vice President and Chief Operating Officer in April 2001 and was promoted to President in September 2007. Mr. Towers is also the Executive Vice President, Treasurer and Secretary of each of our subsidiaries.
Vincent Pascal has been employed by us since 1983 and was elected Vice President, Assistant Secretary and a director in 1985. Mr. Pascal became a Senior Vice President in 2001.
Paul Gordon has been employed by us since 1983 and was elected as a director in November 1996 and a Senior Vice President in April 2001. Mr. Gordon is the manager of the our Las Vegas operations, and is a Senior Vice President of each of the Company’s Las Vegas, Nevada 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.
Marcia Allen was elected a director of the Company in 2003. For the past five years, Ms. Allen has been the Chief Executive Officer of Allen & Associates Inc., a business and acquisition consulting firm. Also, from December 2001 to August 2002 Ms. Allen served as President and a member of the board of directors of Accesspoint Inc.
Bruce R. Lewin was elected a director of the Company in February 2000. Mr. Lewin has been the President and a director of Continental Hosts, Ltd since August 2001. He is also a founder of Fuze Beverage, LLC. Mr. Lewin was formerly a director of the Bank of Great Neck (in New York), and a former director of the New York City Chapter of the New York State Restaurant Association. He has been owner and President of Bruce R. Lewin Fine Art since 1985.
6
Steven Shulman was elected a director of the Company in December 2003. During the past five years, Mr. Shulman has been the managing director of Hampton Group, a company engaged in the business of making private investments. Mr. Shulman also serves as a director of various private companies.
Arthur Stainman was elected director of the Company in 2004. Mr. Stainman is a senior managing director of First Manhattan Co. of New York City, a money management firm, and has over twenty years experience managing money for high net worth individuals.
Stephen Novick was elected director of the Company in 2005. Mr. Novick serves as Senior Advisor for the Andrea and Charles Bronfman Philanthropies, a private family foundation. From 1990 to 2004, Mr. Novick served as Chief Creative Officer of Grey Global Group, an advertising agency. Mr. Novick continues to serve as a consultant for Grey Global Group. He also serves as a member of the Board of Directors of Toll Brothers, Inc.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE ELECTION OF EACH NAMED
NOMINEE.
EXECUTIVE OFFICER
The executive officer is the officer who is not a member of our Board but who is an executive officer of the Company pursuant to Section 16 of the Exchange Act.
Robert Stewart, age 52, has been employed by us since June 2002 and was elected Chief Financial Officer effective as of June 24, 2002. For the three years prior to joining us, Mr. Stewart was a Chief Financial Officer and Executive Vice President at Fortis Capital Holdings. For eleven years prior to joining Fortis Capital Holdings, Mr. Stewart held senior financial and audit positions in Skandinaviska Enskilda Banken in their New York, London and Stockholm offices.
PROPOSAL 2: RATIFICATION OF APPOINTMENT OF INDEPENDENT AUDITORS
The Audit Committee has recommended, and the Board of Directors has approved, the appointment of Cohn, an independent registered public accounting firm, to audit our financial statements for the 2009 fiscal year. A representative of Cohn is expected to attend the Meeting and will have an opportunity to make a statement if he or she so desires. He or she will also be available to respond to appropriate questions from our shareholders. For additional information regarding our relationship with Cohn, please see the “Audit Committee Report” below. Although it is not required to submit this proposal to the shareholders for approval, the Board believes it is desirable that an expression of shareholder opinion be solicited and presents the selection of the independent registered public accounting firm to the shareholders for ratification. Even if the selection of Cohn is ratified by the shareholders, the Audit Committee in its discretion could decide to terminate the engagement of Cohn and engage another firm if the committee determines that this is necessary or desirable.
THE BOARD RECOMMENDS THAT YOU VOTE FOR RATIFICATION OF THE APPOINTMENT OF
J.H. COHN LLP AS INDEPENDENT AUDITORS FOR THE COMPANY.
AUDIT COMMITTEE REPORT
The following report is not deemed to be “soliciting material” or to be “filed` with the SEC or subject to the SEC’s proxy rules or to the liabilities of Section 18 of the 1934 Act and the report shall not be deemed to be incorporated by reference into any prior or subsequent filing by the Company under the Securities Act of 1933 or the 1934 Act. The Audit Committee evidenced its completion of and compliance with the duties and responsibilities set forth in the adopted Audit Committee Charter through a formal written report dated and executed as of December 31, 2008. A copy of that report is set forth below.
December 31, 2008
The Board of Directors
Ark Restaurants Corp.
Fellow Directors:
7
The primary purpose of the Audit Committee is to assist the Board of Directors in its general oversight of the Corporation’s financial reporting process. The Audit Committee conducted its oversight activities for Ark Restaurants Corp. and subsidiaries (“Ark”) in accordance with the duties and responsibilities outlined in the audit committee charter. The Audit Committee annually reviews the NASDAQ standard of independence for audit committees and its most recent review determined that the committee meets that standard.
Ark management is responsible for the preparation, consistency, integrity and fair presentation of the financial statements, accounting and financial reporting principles, systems of internal control, and procedures designed to ensure compliance with accounting standards, applicable laws, and regulations. The Corporation’s independent auditors, J.H. Cohn LLP, are responsible for performing an independent audit of the financial statements and expressing an opinion on the conformity of those financial statements with accounting principles generally accepted in the Unites States of America.
The Audit Committee, with the assistance and support of the Chief Financial Officer of Ark, has fulfilled its objectives, duties and responsibilities as stipulated in the audit committee charter and has provided adequate and appropriate independent oversight and monitoring of Ark’s systems of internal control for the fiscal year ended September 27, 2008.
These activities included, but were not limited to, the following significant accomplishments during the fiscal year ended September 27, 2008:
In reliance on the Committee’s review and discussions of the matters referred to above, the Audit Committee recommends the audited financial statements be included in Ark’s Annual Report on Form 10-K for the fiscal year ended September 27, 2008, for filing with the Securities and Exchange Commission.
Respectfully submitted,
Ark Restaurants Corp. Audit Committee
Bruce R. Lewin, Arthur Stainman and Marcia Allen
AUDIT FEES AND SERVICES
During fiscal 2007 and 2008, Cohn served as our independent auditors. The following table presents fees for professional audit services rendered by Cohn for the audit of our annual financial statements for the years ended September 29, 2007 and September 27, 2008, and fees for other services rendered by Cohn during those periods.
|
2008 |
2007 |
|||
| Audit Fees | $311,968 | $180,448 | ||
| Audit Related Fees | 10,305 | 21,375 | ||
| Tax Fees | 129,200 | 95,500 | ||
| Total | $451,473 | $297,323 |
Audit Fees. Annual audit fees relate to services rendered in connection with the audit of our consolidated financial statements and the quarterly reviews of financial statements included in our Forms 10-Q.
Audit Related Fees. Audit related services include fees for SEC registration statement services, benefit plan audits, consultation on accounting standards or transactions, statutory audits, business acquisitions, and assessment of risk management controls in connection with the implementation of Section 404 of the Sarbanes-Oxley Act of 2002.
8
Tax Fees. Tax services include fees for tax compliance, tax advice and tax planning.
The Audit Committee considers whether the provision of these services is compatible with maintaining the auditor’s independence, and has determined such services for fiscal 2007 and 2008 were compatible.
We have been advised by Cohn that neither the firm, nor any member of the firm, has any financial interest, direct or indirect, in any capacity in the Company or its subsidiaries.
Policy on Audit Committee Pre-Approval of Audit and Non-Audit Services of Independent Auditor
The Audit Committee is responsible for appointing, setting compensation and overseeing the work of the independent auditor. The Audit Committee has established a policy regarding pre-approval of all audit and non-audit services provided by the independent auditor.
On an ongoing basis, management communicates specific projects and categories of service for which the advance approval of the Audit Committee is requested. The Audit Committee reviews these requests and advises management if the Committee approves the engagement of the independent auditor. On a periodic basis, management reports to the Audit Committee regarding the actual spending for such projects and services compared to the approved amounts. The projects and categories of service are as follows:
Audit—Annual audit fees relate to services rendered in connection with the audit of our consolidated financial statements and the quarterly reviews of financial statements included in our Forms 10-Q.
Audit Related Services—Audit related services include fees for SEC registration statement services, benefit plan audits, consultation on accounting standards or transactions, statutory audits, and business acquisitions.
Tax—Tax services include fees for tax compliance, tax advice and tax planning.
EXECUTIVE COMPENSATION
The following table sets forth compensation for the Company’s CEO (its “principal executive officer,” or “PEO”) and the other NEOs during the fiscal year ended September 27, 2008.
SUMMARY COMPENSATION TABLE
| Name and Principal Position |
Year |
Salary ($) |
Bonus ($) |
Stock Awards ($) |
Option Awards ($) |
Non-Equity Incentive Plan Compensation ($) |
Total ($) |
|||||||
| Michael Weinstein | 2008 |
866,015 |
100,000 | 0 |
0 | 0 | 966,015 | |||||||
| Chief Executive Officer | 2007 |
822,431 |
39,264 | 0 |
273,500 | 0 | 1,135,195 | |||||||
| Vincent Pascal | 2008 |
381,120 |
30,000 | 0 |
0 | 0 | 411,120 | |||||||
| Senior Vice President | 2007 |
361,288 |
17,248 | 0 |
109,400 | 0 | 487,936 | |||||||
| Robert Towers | 2008 |
381,120 |
105,000 | 0 |
0 | 0 | 486,120 | |||||||
| President, Chief Operating | 2007 |
360,895 |
85,248 | 0 |
109,400 | 0 | 555,543 | |||||||
| Officer and Treasurer | ||||||||||||||
OUTSTANDING EQUITY AWARDS AT FISCAL YEAR-END
The following table provides information on the holdings of stock options by the CEO and NEOs as of September 27, 2008.
|
Option Awards
|
||||||||
| Number of | Number of | |||||||
| Securities Underlying | Securities Underlying | |||||||
| Unexercised Options | Unexercised Options | Option | Option | |||||
| (#) | (#) | Exercise Price | Expiration | |||||
|
Name
|
Exercisable | Unexercisable | ($) | Date | ||||
| Michael Weinstein | 12,500 | 0 | 29.60 | 12/21/14 | ||||
| 6,250 | 18,750 | 32.15 | 12/18/16 | |||||
| Vincent Pascal | 17,500 | 0 | 29.60 | 12/21/14 | ||||
| 2,500 | 7,500 | 32.15 | 12/18/16 | |||||
| Robert Towers | 17,500 | 0 | 29.60 | 12/21/14 | ||||
| 2,500 | 7,500 | 32.15 | 12/18/16 | |||||
DIRECTOR COMPENSATION
The Company uses cash compensation and equity-based incentive compensation to attract and retain qualified candidates to serve as directors. In setting director compensation, the Company considers the significant amount of time that directors expend in fulfilling their duties to the Company as well as the skill level required by the Company of directors.
Compensation Paid to Directors in 2008
In fiscal 2008 the Company paid a fee of $23,625 to each director who was not an officer of the Company. Directors who are also full-time employees of the Company did not receive any director fees. In addition, the independent director who serves as chairman of the Audit Committee of the Board receives an annual retainer fee of $5,000. The independent directors who serve on the Audit, Compensation and Nominating and Corporate Governance Committees, respectively, including the chairman of the Audit Committee, receive $1,050 for each meeting that they attended. Each member of the Board receives an additional $1,050 for each Board meeting that they attended in excess of one per quarter, plus an additional $500 if such additional Board meeting attended exceeds four hours. The Company reimburses directors for out-of-pocket expenses incurred in connection with attending Board of Director and committee meetings.
Director Summary Compensation Table
The following table summarizes the compensation earned by or paid to the Company's non-employee directors from the Company for the year ended September 27, 2008.
| Name | Fees Earned or Paid in | Option | All Other | Total | ||||
| Cash | Awards | Compensation | ($) | |||||
| ($) | ($) | ($) | ||||||
| Bruce R. Lewin | 34,127 | -- | -- | 34,127 | ||||
| Steven Shulman | 25,724 | -- | -- | 25,724 | ||||
| Marcia Allen | 30,974 | -- | -- | 30,974 | ||||
| Arthur Stainman | 30,974 | -- | -- | 30,974 | ||||
| Stephen Novick | 23,624 | -- | -- | 23,624 |
10
STOCK OWNERSHIP INFORMATION
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth certain information as of January 23, 2009, with respect to the beneficial ownership of shares of our common stock owned by:
Each of our directors, our CEO and the other NEOs;
All directors and executive officers as a group; and
Each person or entity who is known to us to be the beneficial owner of more than 5% of our common stock.
As of January 23, 2009, our outstanding equity securities consisted of 3,489,845 shares of common stock. The number of shares beneficially owned by each stockholder is determined under rules promulgated by the SEC and generally includes voting or investment power over the shares. The information does not necessarily indicate beneficial ownership for any other purpose. Under the SEC rules, the number of shares of common stock deemed outstanding includes shares issuable upon the conversion of other securities, as well as the exercise of options or the settlement of restricted stock units held by the respective person or group that may be exercised or settled on or within 60 days of January 23, 2009. For purposes of calculating each person’s or group’s percentage ownership, shares of common stock issuable pursuant to stock options and restricted stock units that may be exercised or settled on or within 60 days of January 23, 2009 are included as outstanding and beneficially owned by that person or group but are not treated as outstanding for the purpose of computing the percentage ownership of any other person or group.
|
Name and Address |
Amount and Nature |
Percent of Class | |||||
|
of Beneficial Owner |
of |
||||||
|
Beneficial Ownership |
|||||||
|
(1) |
|||||||
| Michael Weinstein | 1,091,020 | (2) |
31.26% |
||||
| 85 Fifth Avenue | |||||||
| New York, New York 10003 | |||||||
| Bruce R. Lewin | 286,681 | (3)(6) |
8.21% |
||||
| 1329A North Avenue | |||||||
| New Rochelle, New York 10804 | |||||||
| Vincent Pascal | 59,608 | (4) |
1.71% |
||||
| 85 Fifth Avenue | |||||||
| New York, New York 10003 | |||||||
| Robert Towers | 42,300 | (4)(5) |
1.21% |
||||
| 85 Fifth Avenue | |||||||
| New York, New York 10003 | |||||||
| Steven Shulman | 11,800 | (6) |
Less than 1% |
||||
| One Liberty Lane | |||||||
| Hampton, NH 03842 | |||||||
| Marcia Allen | 2,500 | (6) |
Less than 1% |
||||
| 9601 Wilshire Boulevard | |||||||
| Los Angeles, CA 90210 | |||||||
11
Name
and Address |
Amount
and Nature |
Percent of Class | ||||
of
Beneficial Owner |
of |
|||||
Beneficial
Ownership |
||||||
(1) |
||||||
| Loeb Partners Corporation | 176,790 | (7) | 5.07% |
|||
| 61 Broadway | ||||||
| New York, New York 10006 | ||||||
| Paul Gordon | 29,000 | (4) | Less than 1% |
|||
| 85 Fifth Avenue | ||||||
| New York, New York 10003 | ||||||
| Robert Stewart | 24,300 | (4) | Less than 1% |
|||
| 85 Fifth Avenue | ||||||
| New York, New York 10003 | ||||||
| Arthur Stainman | 46,150 |
(6)(8) |
1.32% |
|||
| 320 East 72nd Street | ||||||
| New York, New York 10021 | ||||||
| Prides Capital Partners, L.L.C | 360,856 |
(9) |
10.34% |
|||
| 200 High Street, Suite 700 | ||||||
| Boston, MA 02110 | ||||||
| Stephen Novick | 2,500 |
(6) |
Less than 1% |
|||
| 110 East 59th Street | ||||||
| New York, New York 10022 | ||||||
| Irving Hershkowitz | 246,642 |
(10) |
7.07% |
|||
| c/o Big Geyser, Inc. | ||||||
| 57-65 48th Street | ||||||
| Maspeth, NY 11378 | ||||||
| Royce & Associates, LLC | 176,932 |
(11) |
5.07% |
|||
| 1414 Avenue of the Americas | ||||||
| New York, NY 10019 | ||||||
| All directors and officers as a group (ten persons) | 1,595,859 |
(12) |
45.73% |
|||
| (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 17,371 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, an aggregate of 2,400 shares owned by Mr. Weinstein’s minor children and 25,000 shares issuable pursuant to stock options exercisable within 60 days after the date of this Proxy Statement. |
| (3) |
Includes 1,500 shares owned by Mr. Lewin in his Individual Retirement Account (“IRA”). |
| (4) |
Includes 22,500 shares issuable pursuant to stock options exercisable within 60 days after the date of this Proxy Statement. |
| (5) |
Includes 900 shares owned by Mr. Tower’s spouse in her IRA. |
| (6) |
Includes 2,500 shares issuable pursuant to stock options exercisable within 60 days after the date of this Proxy Statement. |
| (7) |
Based upon information set forth in Schedule 13D/A filed by Loeb Partners Corporation (“LPC”) with the SEC on or about November 11, 2008. Loeb Arbitrage Management LLC (“LAM”) is the general partner of Loeb Arbitrage Fund (“LAF”). LAM is the investment manager of Loeb Arbitrage B Fund LP (“LAFB”). The |
12
|
President and Chief Operating Officer of the general partner is Robert E. Enslein, Jr. The other officers of LAM are Thomas L. Kempner, Chairman of the Board, Gideon J. King, Chief Executive Officer, Michael S. Emanuel, Senior Vice President and Secretary and David S. Hampson, Chief Financial Officer. Thomas L. Kempner is the President, Chief Executive Officer and a director of LPC. Loeb Holding Corporation (“LHC”) is the sole stockholder of LAM and LPC. Thomas L. Kempner is its President and a director as well as its Chief Executive Officer and majority stockholder and Bruce L. Lev, Norman N. Mintz and Peter A. Tcherepnine are also directors of LHC. Loeb Offshore Management, LLC (“LOM”), a wholly-owned subsidiary of LHC, is the investment adviser of Loeb Offshore Fund, Ltd., (“LOF”) and Loeb Offshore B Fund Ltd. (“LOFB”). Gideon J. King and Thomas L. Kempner are Directors of LOF and LOFB and Managers of LOM. LAM is general partner of Loeb Marathon Fund (“LMF”) and investment adviser of Loeb Marathon Offshore Fund Ltd. (“LMOF”). As of November 11, 2008, LAF beneficially owned 59,378 shares, LPC beneficially owned 36,870 shares (including shares purchased for the accounts of customers of LPC as to which LPC has investment discretion), LOF beneficially owned 14,534 shares, LMF beneficially owned 21,573 shares, LMOF beneficially owned 14,486 shares, LAFB beneficially owned 21,727 shares, and LOFB beneficially owned 8,222 shares. The above-referenced shareholders may, therefore, be deemed the beneficial owner of 176,790 shares, or 5.07% of the Company’s outstanding Common Stock. |
|
| (8) |
Includes 18,150 shares owned by Mr. Stainman’s spouse and 7,400 shares held by investment advisory clients of First Manhattan Co. ("FMC"), as to which FMC and Mr. Stainman, in his capacity as Managing Member of First Manhattan LLC, the sole general partner of FMC, share dispositive and voting power. |
| (9) |
Based upon information set forth on Form 4 filed by Prides Capital Partners, L.L.C. (“Prides”) with the SEC on or about November 13, 2008. The shares are owned directly by Prides Capital Fund I, L.P. Because Prides Capital Partners, L.L.C. is the general partner of Prides Capital Fund I, L.P., Prides Capital Partners, L.L.C. may be deemed to be the beneficial owner of shares owned by such entity. Because Kevin A. Richardson, II, Murray A. Indick, Henry J. Lawlor, Jr. and Charles E. McCarthy are the controlling shareholders of Prides Capital Partners, L.L.C., they may be deemed to be the beneficial owners of shares deemed to be beneficially owned by such entity. Each of Prides Capital Partners, L.L.C., Prides Capital Fund I, L.P, Kevin A. Richardson, II, Murray A. Indick, Henry J. Lawlor, Jr. and Charles E. McCarthy disclaim beneficial ownership of these shares, except to the extent of any pecuniary interest therein. |
| (10) |
Based upon information set forth in Schedule 13G/A filed by Irving Hershkowitz with the SEC on or about January 27, 2009. |
| (11) |
Based upon information set forth in Schedule 13G filed by Royce & Associates, LLC with the SEC on or about January 23, 2009 |
| (12) |
Includes 127,500 shares issuable pursuant to stock options exercisable within 60 days after the date of this Proxy Statement. |
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires the Company’s officers and directors, and persons who own more than ten percent of a registered class of the Company’s equity securities to file reports of ownership and changes in ownership on Forms 3, 4 and 5 with the Securities and Exchange Commission (the “Commission”) and the NASDAQ Global Market. Officers, directors and greater than ten percent shareholders are required by the Commission’s regulations to furnish the Company with copies of all Forms 3, 4 and 5 they file. Based solely on the Company’s review of the copies of such forms it has received, the Company believes that all of its officers, directors and greater than ten percent beneficial owners complied with all filing requirements applicable to them with respect to transactions during fiscal 2008.
CERTAIN RELATIONSHIPS AND RELATED PERSON TRANSACTIONS
In prior years, the Company made loans to Robert Towers. During fiscal 2008, the largest amount of indebtedness outstanding at any one time with respect to these loans to Mr. Towers was $160,854. At January 23, 2009, Mr. Towers was indebted to the Company in the amount of $76,221 with respect to the loans made to him in connection with the exercise of stock options and $37,095 with respect to certain other executive loans. The loans made to him in connection with the exercise of stock options are repayable on demand and bear interest at prime plus one-half percent. The other executive loans are payable on demand and bear interest at the minimum statutory rate.
13
ADDITIONAL INFORMATION
“Householding” of Proxy Materials
The SEC has adopted rules that permit companies and intermediaries such as brokers to satisfy delivery requirements for proxy statements and annual reports with respect to two or more shareholders sharing the same address by delivering a single proxy statement and annual report addressed to those shareholders. This process, which is commonly referred to as “householding,” potentially provides extra convenience for shareholders and cost savings for companies. The Company and some brokers household proxy materials, delivering a single proxy statement and annual report to multiple shareholders sharing an address unless contrary instructions have been received from the affected shareholders.
Once you have received notice from your broker or us that each of us will be householding materials to your address, householding will continue until you are notified otherwise or until you revoke your consent. If, at any time, you no longer wish to participate in householding and would prefer to receive a separate proxy statement and annual report, or if you are receiving multiple copies of the proxy statement and annual report and wish to receive only one, please notify your broker if your shares are held in a brokerage account or the Company if you hold registered shares. You can notify us by sending a written request to Ark Restaurants Corp., Attention Treasurer, 85 Fifth Avenue, New York, NY 10003.
Annual Report
This proxy solicitation material has been mailed with the annual report to shareholders for the fiscal year ended September 27, 2008; however, it is not intended that the annual report be a part of the proxy statement or this solicitation of proxies.
Shareholders are respectfully urged to complete, sign, date and return the accompanying form of proxy in the enclosed envelope.
ARK RESTAURANTS CORP. |
|
| By Order of the Board of Directors, | |
| Michael P. Buck Secretary and General Counsel |
New York, New York
February 17, 2009
14
ARK RESTAURANTS CORP.
PROXY SOLICITED BY THE BOARD OF DIRECTORS
FOR THE ANNUAL MEETING OF SHAREHOLDERS
March 24, 2009
THE UNDERSIGNED, revoking all previous proxies, hereby appoints MICHAEL WEINSTEIN, ROBERT TOWERS and VINCENT PASCAL, 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 March 24, 2009 at 10:00 A.M. local time at Bryant Park Grill, located at 25 West 40th Street, New York, New York, and at all adjournments thereof.
(CONTINUED AND TO BE SIGNED ON THE REVERSE SIDE)
Please
mark your vote like this |
x |
||||||||||||
| FOR | WITHHOLD AUTHORITY |
FOR | AGAINST | ABSTAIN | |||||||||
| 1. ELECTION OF A BOARD OF NINE DIRECTORS | c | c | 2. | Approval
of the Ark Restaurants Corp. 2009 Stock Option Plan. |
c | c | c | ||||||
| (To withhold authority to vote for any individual nominee, | 3. |
Ratification of the appointment
of J.H. Cohn LLP as independent auditors for the 2009 fiscal year. |
c |
c |
c |
||||||||
| strike a line through that nominee's name in the list below) | |||||||||||||
| 4. | In their discretion, the proxies
are authorized to vote upon such other business as may properly come before the meeting. |
||||||||||||
| 01
- Michael Weinstein 02 - Steven Shulman 03 - Robert Towers 04 - Marcia Allen 05 - Paul Gordon |
06
- Bruce R. Lewin 07 - Vincent Pascal 08 - Arthur Stainman 09 - Stephen Novick |
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 the: (I) election of the nominees for directors designated by the board of directors; (II) approval of the 2009 Stock Option Plan; and (III) ratification of the appointment of J.H. Cohn LLP as independent auditors for the 2009 fiscal year | |||||||||||
| PLEASE COMPLETE. DATE. SIGN AND MAIL THIS PROXY IN THE ENVELOPE ENCLOSED FOR THIS PURPOSE. No postage is required for mailing in the United States. | |||||||||||||
COMPANY
ID: ROXY NUMBER: ACCOUNT NUMBER: |
|||||||||||||
Dated: _______________________________, 2009 Signature _________________________________________________ Signature _________________________________________________
Please sign exactly as your name or names appear hereon. Joint owners should each sign personally. When signing as executor, administrator, corporation, officer, attorney. agent~ trustee or guardian, etc.; please add your full title to your signature