UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant
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Filed by a Party other than the Registrant
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Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for use of the Commission only (as permitted by Rule 14a-6 (e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material under Rule 14a-12
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Ark
Restaurants Corp.
(Name of Registrant as Specified In Its Charter)
Same
(Name of Person(s) Filing Proxy Statement, if other
than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required.
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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(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:
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Fee previously paid with the preliminary materials:
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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.
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(1) Amount Previously Paid:
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(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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ARK RESTAURANTS CORP.
85 Fifth Avenue
New York, New York 10003
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
To Be Held on March 21, 2017
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 21, 2017 at 10:00
A.M., New York City time, at Bryant Park Grill, located at 25 West 40
th
Street, New York, New York, for the following
purposes:
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To elect a board of nine directors;
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To ratify the appointment of CohnReznick LLP (“Cohn”),
as independent auditors for the 2017 fiscal year;
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(3)
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To hold an advisory vote on executive compensation;
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(4)
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To hold an advisory vote on the frequency of the advisory vote on executive compensation;
and
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(5)
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To transact such other business as may properly come
before the meeting or any adjournments thereof.
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The Board of Directors has fixed
the close of business on February 22, 2017, 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.
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By Order of the Board of Directors,
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Robert Stewart
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President
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New York, New York
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February 24, 2017
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ARK RESTAURANTS CORP.
PROXY STATEMENT
ANNUAL MEETING INFORMATION
This proxy statement contains information related
to the annual meeting of shareholders of Ark Restaurants Corp., a New York corporation (“Ark” or the “Company”)
to be held at
Bryant Park Grill, located at 25 West 40
th
Street, New York, New York, at 10:00 A.M., New York
City time, on March 21, 2017 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. This proxy statement and proxy are being first mailed to shareholders on or about February
24, 2017.
Throughout this Proxy Statement, the terms “we,”
“us,” “our” and the “Company” refer to Ark Restaurants Corp. and, unless the context indicates
otherwise, our subsidiaries on a consolidated basis; and “you” and “your” refers to the shareholders of
our Company.
Important Notice Regarding the Availability of Proxy Materials
for the Annual Meeting to be Held on March 21, 2017.
This Proxy Statement, the form of proxy and the Company’s Annual
Report are available at
www.cstproxy.com/arkrestaurants/2017
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Who may attend the annual meeting?
All shareholders of record at the close of business
on February 22, 2017 (the “Record Date”), or their duly appointed proxies, and our invited guests may attend the Meeting.
If your shares are held in an account at a brokerage
firm, bank, broker-dealer or other similar organization, then you are the beneficial owner of shares held in “street name,”
and the Notice of Internet Availability was forwarded to you by that organization. The organization holding your account is considered
the stockholder of record for purposes of voting at the Annual Meeting. As a beneficial owner, you have the right to direct that
organization on how to vote the shares held in your account.
Shares of common stock held in a stockholder’s
name as the stockholder of record may be voted in person at the Annual Meeting. Shares of common stock held beneficially in street
name may be voted in person only if you obtain a legal proxy from the broker, trustee or nominee that holds your shares giving
you the right to vote the shares.
Whether you hold shares directly as the stockholder
of record or beneficially in street name, you may direct how your shares are voted without attending the Annual Meeting. If you
are a stockholder of record, you may vote by submitting a proxy electronically via the Internet, by telephone or if you have requested
a paper copy of these proxy materials, by returning the proxy or voting instruction card. If you hold shares beneficially in street
name, you may vote by submitting voting instructions to your broker, trustee or nominee.
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 your common stock is entitled to one vote on each of the proposals scheduled
for vote at the Meeting. As of the Record Date, there were 3,418,128 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:
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The election of nine (9) directors for a term to expire at the next annual meeting of shareholders;
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The ratification of the selection of CohnReznick LLP (“Cohn”) as our independent registered public accounting firm for fiscal 2017;
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To hold an advisory vote on executive compensation; and
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To hold an advisory vote on the frequency of the advisory vote on executive compensation.
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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; “FOR” ratification
of the selection of Cohn as our independent registered public accounting firm for fiscal 2017, “FOR” adoption on advisory
vote on executive compensation, “FOR” Say-On-Pay vote every three years, and in accordance with the proxy holders best
judgment as to any other matters raised at the annual meeting.
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:
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signing another proxy card with a later date and returning it to us prior to the Meeting;
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giving written notice of revocation to Ark Restaurants Corp., Attention: Treasurer, 85 Fifth Avenue, New York, NY 10003; or
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attending the Meeting and voting in person.
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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 certain, limited “routine” matters, but cannot vote on non-routine
matters, such as the non-contested election of directors or 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.
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. The affirmative vote of a majority of the shares represented in person or by
proxy at the annual meeting is required for approval of the proposal to ratify the appointment of Cohn for fiscal 2017. 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. Therefore, a broker non-vote has no effect on the proposals provided herein to be voted on
at the Meeting. 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 any of the proposals.
Because the votes on the non-binding resolution
to approve the compensation of our named executive officers and the frequency of the vote on such compensation are advisory, they
will not be binding on the Board of Directors of the Company. However, the Board will review the voting results and take them into
consideration when making future decisions regarding executive compensation.
Our directors, director-nominees and executive
officers own, directly or indirectly, approximately 46% of the voting power entitled to be cast at the Meeting. We anticipate that
these directors and executive officers will cast all of their votes in favor of each of the proposals being considered at the Meeting.
Shareholders are not entitled to dissenter’s rights of appraisal with respect to any of the proposals.
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 October 27, 2017. All proposals
and notifications should be addressed to Ark Restaurants Corp., Attention: Treasurer, 85 Fifth Avenue, New York, NY 10003. Any
such shareholder proposal must comply with the requirements of Rule 14a-8 promulgated under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”).
Where can I find the voting results?
The preliminary voting results will be announced at the Meeting. The
final results will be published in a current report on Form 8-K filed within four (4) business days after the Meeting.
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 Exchange Act available on our website in the About
Ark – Investors – 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.
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 – Investors –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. The Company does not utilize any other definition or criteria
for determining the independence of a director or nominee, and no other transactions, relationships, or other arrangements exist
to the Board’s knowledge or were considered by the Board, other than as may be discussed herein, in determining any such
director’s or nominee’s independence.
Board and Committee Meeting Attendance
During the past fiscal year, the Board
held five meetings, including two telephone 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 met twice last 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 cash-based and equity-based
compensation plans; and (iii) implements, administers, operates and interprets our equity-based and similar compensation plans
to the extent provided under the terms of such plans. The Compensation Committee has the authority to make decisions respecting
CEO and executive officer compensation matters, including employment and severance contracts, salary, compensation awards and bonuses,
among other things, and has the right to retain and terminate compensation consultants, legal counsel and other advisors to assist
the committee with its functions. The Committee may delegate authority to subcommittees of the Compensation Committee or to executive
officers (with respect to compensation determinations for non-executive officers), as well as delegate authority to the Company’s
CEO to approve options to employees (who are not directors or executive officers) of the Company or of any subsidiary of the Company,
subject to certain quantity, time and price limitations.
The Board of Directors adopted a written
charter under which the Compensation Committee operates. The Board of Directors reviews and assesses the adequacy of the charter
of the Compensation Committee on an annual basis.
The Compensation Committee held one meeting
in fiscal 2016.
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, 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 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 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 four meetings
during fiscal 2016.
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:
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Judgment
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Skill
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Diversity
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Experience with businesses and other organizations of comparable size
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The interplay of the candidate’s experience with the experience of other Board members
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The extent to which the candidate would be a desirable addition to the Board and any committees of the Board
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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 fiscal 2016.
There are no family relationships among
any of the directors or executive officers (or any nominee therefor) of the Company, and no arrangements or understandings exist
between any director or nominee and any other person pursuant to which such director or nominee was or is to be selected with respect
to the election of directors. No director or executive officer (or any nominee therefor or any associate thereof) has any substantial
interest, direct or indirect, by security holdings or otherwise, in any proposal or matter to be acted upon at the Meeting (other
than the election of directors). There are no events or legal proceedings material to an evaluation of the ability or integrity
of any director or executive officer, or any nominee therefor, of the Company. Moreover, no director or executive officer of the
Company, nor any nominee, is a party adverse to the Company or has a material interest adverse to the Company in any legal proceeding.
Stockholder Communications
The Board welcomes communications from
stockholders, which may be sent to the entire Board at the principal business address of the Company, Ark Restaurants Corp., 85
Fifth Avenue, New York, New York 10003, Attn: Corporate Secretary. Security holder communications are initially screened to determine
whether they will be relayed to Board members. Once the decision has been made to relay such communications to Board members, the
Secretary will release the communication to the Board on the next business day. Communications that are clearly of a marketing
nature, or which are unduly hostile, threatening, illegal or similarly inappropriate will be discarded and, if warranted, subject
to appropriate legal action.
Recognizing that director attendance at
the Company’s annual meetings of stockholders can provide stockholders with an opportunity to communicate with members of
the Board of Directors, it is the policy of the Board of Directors to encourage, but not require, the members of the Board to attend
such meetings.
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 2018. 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.
The following is a brief account of the
business experience during the past five years of each of the Company’s directors and executive officers, including principal
occupations and employment during that period and the name and principal business of any corporation or other organization in which
such occupation and employment was carried on.
Name
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Age
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Principal Occupation and Position with the
Company
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Director
Since
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Michael Weinstein
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73
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Chairman of the Board and Chief Executive Officer of the Company
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1983
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Robert Stewart
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60
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President, Chief Financial Officer and Treasurer of the Company
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2012
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Vincent Pascal
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73
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Chief Operating Officer and Senior Vice President of the Company
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1985
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Paul Gordon
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65
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Senior Vice President of the Company
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1996
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Marcia Allen
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66
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Chief Executive Officer, Allen & Associates
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2003
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Bruce R. Lewin
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69
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Chairman and President, Continental Hosts, Ltd.
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2000
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Steven Shulman
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75
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Managing Director, Hampton Group Inc.
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2003
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Arthur Stainman
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74
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Senior Managing Director, First Manhattan Co.
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2004
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Stephen Novick
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76
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Senior Advisor, Andrea and Charles Bronfman Philanthropies
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2005
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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 an executive officer of each of our subsidiaries.
Mr. Weinstein is an officer, director and 29.67% shareholder of RSWB Corp. and a director and 28% owner of BSWR Corp. (since 1998).
Mr. Weinstein is also the owner of 30.67% of the membership interests in New Docks LLC. Collectively, these companies operate three
restaurants in New York City, and none of these companies is a parent, subsidiary or other affiliate of us. Mr. Weinstein spends
substantially all of his business time on Company-related matters.
Robert Stewart
has been employed by us since June 2002, was elected Chief Financial Officer effective as of June 24, 2002, was elected
to the Board of Directors in March 2012 and was elected President in December 2013. 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.
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 and Chief Operating Officer in 2011.
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 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. Since 2008, 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 was also a founder and board member 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.
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 a 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. Mr. Stainman
is a Trustee of Rider University and sits on the board of several New York based non-profits.
Stephen Novick
was elected a 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.
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 2017 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. If the selection
of Cohn is not ratified by shareholders, the Board of Directors will take that into consideration but does not intend to engage
another firm. 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 COHNREZNICK 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 Exchange 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 Exchange 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 22, 2016. A copy of that report is set forth below.
December 22, 2016
The Board of Directors
Ark Restaurants Corp.
Fellow Directors:
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, CohnReznick 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 October 1, 2016.
These activities included, but were not
limited to, the following significant accomplishments during the fiscal year ended October 1, 2016:
|
•
|
Reviewed and discussed the audited financial statements with management and the external auditors.
|
|
|
|
|
•
|
Received written disclosures and letter from the external auditors required by Independence Standards Board Standard No. 1, and discussed with the auditors their independence.
|
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 October 1, 2016, 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 2015 and 2016, 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 October 3, 2015 and October 1, 2016, and fees for other services rendered by
Cohn during those periods.
|
|
2015
|
|
|
2016
|
|
|
|
|
|
|
|
|
Audit Fees
|
|
$
|
261,697
|
|
|
$
|
317,677
|
|
Audit Related Fees
|
|
|
28,500
|
|
|
|
42,000
|
|
Tax Fees
|
|
|
—
|
|
|
|
—
|
|
All Other Fees
|
|
|
—
|
|
|
|
—
|
|
Total
|
|
$
|
290,197
|
|
|
$
|
359,677
|
|
Audit Fees
. Annual audit
fees relate to services rendered in connection with the audit of our consolidated annual financial statements included in our Form
10-K 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.
Tax Fees
. Tax services
include fees for tax compliance, tax advice and tax planning.
All Other Fees
: Includes
other fees or expenses billed for other services not described above rendered to the Company by Cohn.
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 2015 and 2016 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, as follows: on an ongoing basis,
management communicates specific projects and categories of service for which the advance approval of the Audit Committee is requested,
and 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. All audit-related fees, tax fees and all other fees were approved by the Audit Committee. 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 included in our Form 10-K
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, business acquisitions and assessment of risk management controls in connection with the implementation
of Section 404 of the Sarbanes-Oxley Act of 2002.
Tax
—Tax services
include fees for tax compliance, tax advice and tax planning.
All Other
—fees for
all other services provided by Cohn.
EXECUTIVE COMPENSATION
The following table shows information concerning
all compensation paid for services to the Company in all capacities during the fiscal years ended October 3, 2015 and October 1,
2016, as to the Chief Executive Officer (its “principal executive officer” or “PEO”) and each of the other
two most highly compensated executive officers of the Company who served in such capacity at the end of the last two fiscal years
(the “Named Executive Officers” or “NEOs”):
SUMMARY COMPENSATION TABLE
Name and Principal
Position(s)
|
|
Year
|
|
|
Salary
($)
|
|
|
Bonus
($)
|
|
|
Option
Award
($)
|
|
|
All Other
Compensation
($)
|
|
|
Total
($)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael Weinstein
|
|
2016
|
|
|
$
|
1,045,846
|
|
|
$
|
90,000
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
1,135,846
|
(1)
|
Chief Executive Officer
|
|
2015
|
|
|
$
|
1,035,519
|
|
|
$
|
90,000
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
1,125,519
|
(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vincent Pascal
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior Vice President and
|
|
2016
|
|
|
$
|
478,326
|
|
|
$
|
50,000
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
528,326
|
|
Chief Operating Officer
|
|
2015
|
|
|
$
|
455,981
|
|
|
$
|
50,000
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
505,981
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul Gordon
|
|
2016
|
|
|
$
|
409,544
|
|
|
$
|
50,000
|
|
|
$
|
—
|
|
|
$
|
75,263
|
(2)
|
|
$
|
534,807
|
|
Senior Vice President
|
|
2015
|
|
|
$
|
390,412
|
|
|
$
|
50,000
|
|
|
$
|
—
|
|
|
$
|
80,510
|
(2)
|
|
$
|
520,922
|
|
|
(1)
|
Under Section 162(m) of the Internal Revenue Code, a publicly-held corporation cannot deduct the compensation of certain executives exceeding $1,000,000 in any taxable year, unless the compensation is performance-based. With respect to Mr. Weinstein’s compensation that is subject to the Section 162(m) deductibility limitations, the Compensation Committee used its judgment to authorize payments that do not comply with the exemptions in Section 162(m) as it believed that such payment was appropriate and in the best interest of the stockholders, after taking into consideration the executive’s individual performance and responsibilities. The Compensation Committee has approved the adoption of the Section 162(m) Cash Bonus Plan for implementation in the fiscal year ending October 1, 2016.
|
|
|
|
|
(2)
|
1% of operating profits of the Las Vegas operations as commissions.
|
OUTSTANDING EQUITY AWARDS AT FISCAL YEAR-END
The following table provides information on the holdings of
stock options by the CEO and NEOs as of October 1, 2016:
|
|
Option Awards
|
(a)
|
|
(b)
|
|
|
(c)
|
|
|
(e)
|
|
|
(f)
|
Name
|
|
Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
|
|
|
Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
|
|
|
Option
Exercise Price
($)
|
|
|
Option
Expiration
Date
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael Weinstein
|
|
|
25,000
|
|
|
|
—
|
|
|
$
|
32.15
|
|
|
12/18/16
|
Chief Executive Officer
|
|
|
21,375
|
|
|
|
—
|
|
|
$
|
22.50
|
|
|
06/09/24
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vincent Pascal
|
|
|
10,000
|
|
|
|
—
|
|
|
$
|
32.15
|
|
|
12/18/16
|
Senior Vice President and
|
|
|
9,500
|
|
|
|
—
|
|
|
$
|
12.04
|
|
|
05/06/19
|
Chief Operating Officer
|
|
|
19,500
|
|
|
|
—
|
|
|
$
|
14.40
|
|
|
06/12/22
|
|
|
|
21,375
|
|
|
|
—
|
|
|
$
|
22.50
|
|
|
06/09/24
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul Gordon
|
|
|
10,000
|
|
|
|
—
|
|
|
$
|
32.15
|
|
|
12/18/16
|
Senior Vice President
|
|
|
19,500
|
|
|
|
—
|
|
|
$
|
12.04
|
|
|
05/06/19
|
|
|
|
19,500
|
|
|
|
—
|
|
|
$
|
14.40
|
|
|
06/12/22
|
|
|
|
21,375
|
|
|
|
—
|
|
|
$
|
22.50
|
|
|
06/09/24
|
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
2016
In fiscal 2016, the Company paid a fee
of $28,000 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 $15,000. The independent directors who serve on the Audit, Compensation and Nominating and Corporate
Governance Committees, respectively, including the chairman of the Audit Committee, receive $1,200 for each meeting that they attended.
Each member of the Board receives an additional $1,200 for each Board meeting that they attended in excess of one per quarter,
plus an additional $1,200 if such additional Board meeting attended exceeds four hours. The Company reimburses directors for out-of-pocket
expenses incurred in connection with attending Board of Director and committee meetings.
Director Compensation Table
The following table summarizes the compensation
earned by or paid to the Company’s non-employee directors from the Company for the year ended October 1, 2016.
Name
|
|
Fees Earned
or Paid in
Cash
($)
|
|
|
Option
Awards
($)
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
Bruce Lewin
(1)
|
|
$
|
47,800
|
|
|
$
|
—
|
|
|
$
|
47,800
|
|
Steven Shulman
(1) (2)
|
|
$
|
29,200
|
|
|
$
|
—
|
|
|
$
|
29,200
|
|
Marcia Allen
(1) (2)
|
|
$
|
34,000
|
|
|
$
|
—
|
|
|
$
|
34,000
|
|
Arthur Stainman
(1)
|
|
$
|
34,000
|
|
|
$
|
—
|
|
|
$
|
34,000
|
|
Stephen Novick
(1) (2)
|
|
$
|
28,000
|
|
|
$
|
—
|
|
|
$
|
28,000
|
|
|
(1)
|
Each director has 5,000 currently exercisable options at an exercise price of $32.15 per share and 5,000 currently exercisable options at an exercise price of $22.50 per share.
|
|
(2)
|
Each director has 3,500 currently exercisable options at an exercise price of $12.04 per share and 5,000 currently exercisable options at an exercise price of $14.40 per share
|
PROPOSAL NO. 3
Advisory Vote on Executive Compensation
The Company is providing its shareholders
with the opportunity to cast an advisory vote on executive compensation as described below. We believe that it is appropriate to
seek the views of shareholders on the design and effectiveness of the Company’s executive compensation program.
Our overall goal for the executive compensation
program is to attract, motivate, and retain a talented and creative team of executives who will provide leadership for our success
in very competitive markets in a competitive industry. The Company seeks to accomplish this goal in a way that rewards performance
and that is aligned with shareholders’ long-term interests. We believe that our executive compensation program, which utilizes
both short-term and long-term cash awards and long term equity awards, satisfies this goal and is strongly aligned with the long-term
interest of our shareholders. We believe that the compensation program for the Named Executive Officers is instrumental in helping
the Company achieve strong financial performance. This includes the adoption of the Section 162(m) Cash Bonus Plan for the 2016
fiscal year.
The Company requests shareholder approval
of the compensation of the Company’s Named Executive Officers as disclosed pursuant
to the Securities and Exchange Commission’s
compensation rules (which include the narrative disclosures that accompany the compensation tables).
As an advisory vote, this proposal is not
binding upon the Company. However, the Compensation Committee, which is responsible for designing and administering our executive
compensation program, values the opinions expressed by shareholders in their vote on this proposal and will consider the outcome
of the vote when making future compensation decisions for the Named Executive Officers.
Vote Required
Approval of Proposal No. 3 requires that
the number of votes cast in favor of the proposal exceeds the number of votes cast in opposition. Abstentions and broker non-votes
will not affect the outcome of this proposal.
THE BOARD RECOMMENDS THAT THE COMPENSATION PAID TO THE COMPANY’S
NAMED EXECUTIVE OFFICERS, AS DISCLOSED PURSUANT TO ITEM 402 OF REGULATION S-K IS HEREBY APPROVED.
PROPOSAL NO. 4
Advisory Vote on the Frequency of Say-on-Pay
Votes
The Company is providing shareholders an
advisory vote to approve how often the Company votes on executive compensation as required by Section 14A of the Exchange Act.
Section 14A was added to the Exchange Act by Section 951 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the
“Dodd-Frank Act”). The advisory vote to approve executive compensation is not a vote on the Company’s general
compensation policies or the compensation of the Company’s Board of Directors. The Dodd-Frank Act requires the Company to
hold the advisory vote to approve executive compensation at least once every three years. We believe that our compensation policies
and procedures align with the Company’s strategic objectives and the long-term interests of our shareholders. Our compensation
program is guided by the philosophy that total executive compensation should vary based on achievement of goals and objectives,
both individual and corporate, and should be focused on long-term strategies to build stockholder value. We believe that our philosophy
and practices have resulted in executive compensation decisions that are appropriate and that have benefited the Company over time.
The Compensation Committee will generate
an executive compensation program, which is intended to reward named executive officers for sustaining our financial and operating
performance and leadership excellence, along with the limited use of executive perquisites and reasonable severance pay multiples
contribute to an executive compensation program that is competitive yet strongly aligned with stockholder interests.
This Proposal No. 4 provides shareholders
with the opportunity to cast an advisory vote on how often the Company should include a “say-on-pay” vote in its proxy
materials for future annual shareholder meetings (or a special shareholder meeting for which we must include executive compensation
information in the proxy statement for that meeting). Under this Proposal No. 4, shareholders may vote to have the say-on-pay vote
every three years, two years, one year or they may abstain.
We believe that say-on-pay votes should
be conducted every three years. This is the third time that shareholders are provided with the opportunity to cast a say-on-pay
vote, and the Compensation Committee, which administers our executive compensation program, values the opinions expressed by shareholders
and will consider the outcome of these votes in making its decisions on executive compensation in the future. At our March 24,
2015 Annual Shareholders Meeting, 97.6% of the shares voted approved the compensation paid to our named executive officers and
85.8% voted approval to hold Say-On-Pay votes every one year.
Vote Required
The option of “one year,” “two
years,” or “three years” which receives the highest number of votes will be the option recommended by the shareholders.
Abstentions and broker non-votes will not affect the outcome of this approval.
Recommendation of the Board
THE BOARD RECOMMENDS THAT SHAREHOLDERS VOTE ON PROPOSAL NO.
4 TO HOLD SAY-ON-PAY VOTES EVERY THREE YEARS (AS OPPOSED TO EVERY ONE YEAR OR EVERY TWO YEARS).
STOCK OWNERSHIP INFORMATION
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth certain information as of January
24, 2017, 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 24, 2017, our outstanding
equity securities consisted of 3,418,128 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 Securities and Exchange Commission (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 24, 2017. 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 24, 2017 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
of Beneficial Owner
|
|
Amount and Nature
of
Beneficial Ownership
(1)
|
|
|
Percent of Class
|
|
|
|
|
|
|
|
|
Michael Weinstein
85 Fifth Avenue
New York, New York 10003
|
|
1,031,944
|
(2)
|
|
29.79
|
%
|
|
|
|
|
|
|
|
Bruce R. Lewin
1329A North Avenue
New Rochelle, New York 10804
|
|
302,681
|
(3) (8)
|
|
8.83
|
%
|
|
|
|
|
|
|
|
Vincent Pascal
85 Fifth Avenue
New York, New York 10003
|
|
97,483
|
(4)
|
|
2.80
|
%
|
|
|
|
|
|
|
|
Steven Shulman
P.O. Box 52
Rye Beach, NH 03871
|
|
27,800
|
(5)
|
|
Less than 1
|
%
|
|
|
|
|
|
|
|
Marcia Allen
1112 Montana Avenue, #284
Santa Monica, CA 90403
|
|
18,500
|
(5)
|
|
Less than 1
|
%
|
|
|
|
|
|
|
|
Paul Gordon
85 Fifth Avenue
New York, New York 10003
|
|
70,375
|
(6)
|
|
2.02
|
%
|
|
|
|
|
|
|
|
Robert Stewart
85 Fifth Avenue
New York, New York 10003
|
|
72,675
|
(6)
|
|
2.08
|
%
|
|
|
|
|
|
|
|
Arthur Stainman
320 East 72
nd
Street
New York, New York 10021
|
|
76,950
|
(7) (8)
|
|
2.24
|
%
|
|
|
|
|
|
|
|
FMR LLC
82 Devonshire Street
Boston, MA 02109
|
|
211,044
|
(9)
|
|
6.17
|
%
|
|
|
|
|
|
|
|
Stephen Novick
110 East 59
th
Street
New York, New York 10022
|
|
18,500
|
(5)
|
|
Less than 1
|
%
|
|
|
|
|
|
|
|
Thomas A. Satterfield, Jr.
2609 Caldwell Mill Lane
Birmingham, Alabama 35243
|
|
181,822
|
(10)
|
|
5.32
|
%
|
|
|
|
|
|
|
|
All directors and officers as a group (nine persons)
|
|
1,716,908
|
(11)
|
|
45.89
|
%
|
(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 3,649 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 children and 46,375 shares issuable pursuant to stock options exercisable within 60 days after the date of this Proxy Statement.
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(3)
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Includes 1,500 shares owned by Mr. Lewin in his Individual Retirement Account (“IRA”).
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(4)
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Includes 60,375 shares issuable pursuant to stock options exercisable within 60 days after the date of this Proxy Statement.
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(5)
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Includes 18,500 shares issuable pursuant to stock options exercisable within 60 days after the date of this Proxy Statement.
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(6)
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Includes 70,375 shares issuable pursuant to stock options exercisable within 60 days after the date of this Proxy Statement.
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(7)
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Includes 31,150 shares owned by Mr. Stainman’s spouse and 9,200 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.
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(8)
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Includes 10,000 shares issuable pursuant to stock options exercisable within 60 days after the date of this Proxy Statement.
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(9)
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Based upon information set forth on Schedule
13G filed by FMR LLC (“FMR”) with the SEC on or about February 12, 2016. Fidelity Management & Research Company
(“Fidelity”), a wholly-owned subsidiary of FMR and an investment adviser registered under Section 203 of the Investment
Advisers Act of 1940, is the beneficial owner of 211,044 shares of our common stock as a result of acting as investment adviser
to various investment companies registered under Section 8 of the Investment Company Act of 1940. The ownership of one investment
company, Fidelity Low Priced Stock Fund, amounted to 191,100 shares of our common stock. Edward C. Johnson 3d and FMR, through
its control of Fidelity, and the funds each has sole power to dispose of the 211,044 shares owned by the funds. Members of the
family of Edward C. Johnson 3d, Chairman of FMR, are the predominant owners, directly or through trusts, of Series B voting common
shares of FMR representing 49% of the voting power of FMR. The Johnson family group and all other Series B shareholders have entered
into a shareholders’ voting agreement under which all Series B voting common shares will be voted in accordance with the
majority vote of Series B voting common shares. Accordingly, through their ownership of voting common shares and the execution
of the shareholders’ voting agreement, members of the Johnson family may be deemed, under the Investment Company Act of 1940,
to form a controlling group with respect to FMR. Neither FMR nor Edward C. Johnson 3d has the sole power to vote or direct the
voting of the shares owned directly by the Fidelity funds, which power resides with the funds’ Boards of Trustees. Fidelity
carries out the voting of the shares under written guidelines established by the funds’ Boards of Trustees.
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(10)
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Based upon information set forth on Schedule 13G filed by Thomas A. Satterfield, Jr. (“Mr. Satterfield”) with the SEC on or about January 24, 2017.
With respect to the beneficial ownership reported for Mr. Satterfield, 1,500 shares are held individually by Mr. Satterfield’s spouse; 10,000 shares are held by Tomsat Investment & Trading Co., Inc., a corporation wholly owned by Mr. Satterfield and of which he serves as President; 58,000 shares are held by Caldwell Mill Opportunity Fund, a fund which is managed by an entity of which Mr. Satterfield owns a 50% interest and serves as Chief Investment Manager; and 4,000 shares are held by Riachuello Ranch, LLC, a closely held limited liability company in which Mr. Satterfield owns an approximately 11.1% interest and for which he serves as President. Additionally, Mr. Satterfield has limited powers of attorney for voting and disposition purposes with respect to the following shares: A.G. Family L.P. (64,771 shares); Thomas A. Satterfield, Sr. (15,000 shares); Jeanette Satterfield Kaiser (8,400 shares); Richard W. Kaiser (4,000 shares); David A. Satterfield (2,400 shares); Parker Satterfield (350 shares); Thaggard Marital Trust (800 shares); Thaggard Family Trust (1,200 shares); Alexandra Pontikes (200 shares); and Camille Pontikes (200 shares). These individuals and entities have the right to receive or the power to direct the receipt of the proceeds from the sale of their respective shares.
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(11)
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Includes 323,000 shares issuable pursuant to stock options exercisable within 60 days after the date of this Proxy Statement.
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SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING
COMPLIANCE
Section 16(a) of the Exchange Act 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 SEC and the NASDAQ Capital
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 2016.
CERTAIN RELATIONSHIPS AND RELATED PERSON
TRANSACTIONS
The following section sets forth certain required
information regarding transactions or proposed transactions between the Company and certain related persons for the last two completed
fiscal years.
For information on the compensation received
by our directors and executive officers of the Company during the 2016 fiscal year, and the beneficial ownership of equity securities
of the Company of such individuals, see the “Security Ownership of Certain Beneficial Owners” and “Executive
Compensation” sections.
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.
Other Matters
The Board is not aware of any business to be
presented at the Meeting, other than the matters set forth in the notice of Meeting and described in this Proxy Statement. If any
other business does lawfully come before the Meeting, it is the intention of the persons named as proxies or agents in the enclosed
proxy card to vote on such other business in accordance with their judgment.
Annual Report
This proxy solicitation material has been mailed
with the annual report to shareholders for the fiscal year ended October 1, 2016; however, it is not intended that the annual report
for fiscal year 2016 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.
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ARK RESTAURANTS CORP.
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By Order of the Board of Directors,
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Robert Stewart
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President
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New York, New York
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February 24, 2017
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Important Notice Regarding the Availability
of Proxy Materials for the Annual Meeting of Shareholders to be held March 21, 2017.
The Proxy Statement and our 2016 Annual
Report to Shareholders are available at: http://www.cstproxy.com/arkrestaurants/2017
▼ FOLD AND DETACH HERE AND READ
THE REVERSE SIDE ▼
ARK RESTAURANTS CORP.
PROXY SOLICITED BY THE BOARD OF DIRECTORS
FOR THE ANNUAL MEETING OF SHAREHOLDERS
March 21, 2017
THE UNDERSIGNED, revoking all previous proxies, hereby appoints
MICHAEL WEINSTEIN, ROBERT STEWART 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 21, 2017 at 10:00 A.M. local time at Bryant Park Grill, 25 West 40
th
Street, New York, New York,
and at all adjournments thereof.
(CONTINUED AND TO BE SIGNED ON THE REVERSE
SIDE)
▼ FOLD AND DETACH HERE AND READ THE REVERSE SIDE
▼
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Please mark
your vote
like this
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1. ELECTION OF A BOARD OF NINE DIRECTORS
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FOR
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WITHHOLD
AUTHORITY
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FOR
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AGAINST
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ABSTAIN
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(To withhold authority to vote for any individual
nominee, strike a line through that nominee’s name in the list below)
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o
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o
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2.
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Ratification of the appointment
of Cohn Reznick LLP as independent auditors for the 2017 fiscal year.
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o
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o
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3.
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Advisory vote on approval of executive compensation.
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o
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o
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4.
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Advisory vote on the frequency of the advisory
note on executive compensation.
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1 Yr
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2 Yr
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3 Yr
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Abstain
o
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5.
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In their discretion, the proxies are authorized
to vote upon such other business as may properly come before the meeting.
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01 - Michael Weinstein
02 - Steven Shulman
03 - Robert Stewart
04 - Marcia Allen
05 - Paul Gordon
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06 - Bruce R. Lewin
07 - Vincent Pascal
08 - Arthur Stainman
09 - Stephen Novick
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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 all of the nominees for directors designated
by the board of directors; (2) ratification of the appointment of CohnReznick LLP as independent auditors for the 2017 fiscal
year; (3) approval of executive compensation; (4) for 3 years for Proposal 4, and (5) such other business as may properly
come before the meeting..
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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.
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COMPANY ID:
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PROXY NUMBER:
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ACCOUNT NUMBER:
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Dated:
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, 2017
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Signature
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Signature
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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. If signer is a corporation, please sign n full corporate name by
president and authorized officer. If a partnership or limited liability company, please sign in partnership or limited liability
company name by authorized person.
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