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
þ
Filed by a Party other than the Registrant
o
Check the appropriate box:
o Preliminary
Proxy Statement
o Confidential,
for use of the Commission only (as permitted by Rule 14a-6
(e)(2))
þ Definitive
Proxy Statement
o Definitive
Additional Materials
o Soliciting
Material under Rule 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):
þ No
fee required.
o 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:
o Fee
previously paid with the preliminary materials:
o 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:
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ARK RESTAURANTS CORP.
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85 Fifth Avenue |
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New York, New York 10003 |
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OF ANNUAL MEETING OF SHAREHOLDERS |
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To Be Held on March 14, 2023 |
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To the Shareholders of |
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ARK RESTAURANTS CORP. |
NOTICE IS HEREBY GIVEN that the Annual Meeting of Shareholders of
Ark Restaurants Corp. (the “Company”) will be held on March 14,
2023 at 10:00 A.M., New York City time, at Bryant Park Grill,
located at 25 West 40th Street, New York, New York. At the Annual
Meeting, you will be asked to consider and vote upon:
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(1) |
To elect a board of eight directors; |
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(2) |
To ratify the appointment of CohnReznick LLP ("Cohn"), as
independent auditors for the 2023 fiscal year; and |
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(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 January
17, 2023, 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 A PREVIOUSLY SUBMITTED PROXY AND VOTE YOUR OWN
SHARES AT THE MEETING.
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By Order of the Board of Directors, |
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Anthony J. Sirica |
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President and Chief Financial Officer |
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New York, New York |
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February 3, 2023 |
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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 40th Street, New York, New York, at 10:00
A.M., New York City time, on March 14, 2023 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
Meeting. This proxy statement and proxy are being first mailed to
shareholders on or about February 7, 2023.
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 the
Company.
Important Notice Regarding the Availability of Proxy Materials for
the Annual Meeting to be Held on March 14, 2023.
This Proxy Statement, the form of proxy and the Company’s Annual
Report are available at www.proxyvote.com.
Who may vote?
You may vote if you owned our common stock as of the close of
business on January 17, 2023 (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 3,600,407 shares of common stock outstanding and entitled to
vote at the Meeting. Shares of common stock that are present during
the Meeting constitute shares of common stock represented "in
person."
Who may attend the annual meeting?
All shareholders of record at the close of business on 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 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 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 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.
What will I be voting on?
You will be voting on the following proposals:
•The
election of eight (8) directors for a term to expire at the next
annual meeting of shareholders; and
•The
ratification of the selection of CohnReznick LLP ("Cohn") as our
independent registered public accounting firm for fiscal
2023.
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” the ratification of the selection of Cohn as our
independent registered public accounting firm for fiscal 2023, and
in accordance with the proxy holders best judgment as to any other
matters raised at the annual meeting.
How do I vote?
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.
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.
Via the Internet:
You may vote by proxy via the Internet at www.proxyvote.com by
following the instructions provided on the Notice of Internet
Availability or proxy card. You must have the control number that
is on the Notice of Internet Availability or proxy card when
voting.
By Telephone:
If you live in the United States or Canada, you may vote by proxy
via the telephone by calling 1 (800) 690-6903. You must have the
control number that is on the Notice of Internet Availability or
proxy card when voting.
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:
Secretary, 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 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 the approval of the proposal to ratify the appointment
of Cohn for fiscal 2023. 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.
Our directors, director-nominees and executive officers own,
directly or indirectly, approximately 37.4% 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 15, 2023. All proposals and
notifications should be addressed to Ark Restaurants Corp.,
Attention: Secretary, 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 Investors 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 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, Jessica Kates 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 Leadership Structure
Our Board does not have a policy as to whether the roles of
Chairman of the Board and Chief Executive Officer should be
separate or combined. Currently, the office of Chairman of the
Board and Chief Executive Officer are held by Michael Weinstein.
The Company does not have a lead independent director. Our Board
has determined that its current structure, with combined Chairman
and CEO roles is in the best interests of the Company and its
stockholders at this time. A number of factors support the
leadership structure chosen by the Board, including, among
others:
•Mr.
Weinstein has extensive knowledge of all aspects of the Company and
its business and risks, its industry and its
customers;
•Mr.
Weinstein is intimately involved in the day-to-day operations of
the Company and is best positioned to elevate the most critical
business issues for consideration by the Board of
Directors;
•The
Board believes having Mr. Weinstein serve in both capacities allows
him to more effectively execute the Company’s strategic initiatives
and business plans and confront its challenges;
•A
combined Chairman and CEO structure provides the Company with
decisive and effective leadership with clearer accountability to
our stockholders and customers; and
•In
our view, splitting the roles would potentially make our management
and governance processes less effective through undesirable
duplication of work and possibly lead to a blurring of clear lines
of accountability and responsibility.
Board’s Role in Risk Oversight
Our Board believes that open communication between management and
the Board is essential for effective risk management and oversight.
The Board meets with our Chief Executive Officer and other members
of senior management at Board meetings, where, among other topics,
they discuss strategy and risks in the context of reports from the
management team and evaluate the risks inherent in significant
transactions.
One of the key functions of our Board of Directors is informed
oversight of our risk management process. It administers this
oversight function directly through the Board of Directors as a
whole, as well as through its standing committees that address
risks inherent in their respective areas of oversight. Areas of
focus include economic, operational, financial (accounting, credit,
investment, liquidity and tax), competitive, legal, technical,
regulatory, compliance and reputational risks, and more recently,
risk exposures related to COVID-19. The risk oversight
responsibility of our Board of Directors and its committees is
supported by our management reporting processes, which are designed
to provide visibility to our Board of Directors and to our
personnel who are responsible for risk
assessment and information about the identification, assessment and
management of critical risks, and our management’s risk mitigation
strategies.
While our Board is ultimately responsible for risk oversight, our
Board committees assist the Board in fulfilling its oversight
responsibilities in certain areas of risk. For more information
about our Board committees, please see the sections titled
“Compensation
Committee,”
“Audit
Committee”
and “Nominating
and Corporate Governance Committee”
below. We believe this division of responsibilities is an effective
approach for addressing the risks we face and that our board
leadership structure supports this approach.
Board and Committee Meeting Attendance
During the past fiscal 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 met twice last year in executive session 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
Mr. Novick (Chairperson), Mr. Shulman and Ms. Allen 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 Board of Directors has determined that all
of the members of the Compensation Committee meet the independence
criteria for compensation committees and have the qualifications
set forth in the listing standards of NASDAQ.
The Compensation Committee held one meeting in fiscal
2022.
Audit Committee
Mr. Lewin (Chairperson), Ms. Kates 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 the 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
2022.
Nominating and Corporate Governance Committee
Messrs. Novick (Chairperson) and Lewin and Ms. Allen 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 committee 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 Company does not have a formal policy with regard to the
consideration of diversity in identifying director nominees, but
the Nominating and Corporate Governance Committee strives to
nominate directors with a variety of complementary skills so that,
as a group, the Board will possess the appropriate talent, skills,
and expertise to oversee the Company’s businesses. In addition to
considering a candidate’s background and accomplishments,
candidates are reviewed in the context of the current composition
of the Board and the evolving needs of our businesses. The
Company’s policy is to have at least a majority of directors
qualify as “independent” under the listing requirements of
NASDAQ.
The Nominating and Corporate Governance Committee held one meeting
fiscal 2022.
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: 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. Seven
board members attended our 2022 annual meeting.
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 eight. 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 2024. 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 eight 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.
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Name |
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Age |
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Position |
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Director
Since
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Michael Weinstein |
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79 |
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Chairman of the Board and Chief Executive Officer |
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1983 |
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Anthony J. Sirica |
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59 |
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Director, President and Chief Financial Officer |
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2018 |
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Vincent Pascal |
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79 |
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Director and Chief Operating Officer and Senior Vice
President |
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1985 |
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Marcia Allen |
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72 |
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Director |
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2003 |
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Jessica Kates |
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44 |
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Director |
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2022 |
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Bruce R. Lewin |
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75 |
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Director |
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2000 |
|
Stephen Novick |
|
82 |
|
Director |
|
2005 |
|
Steven Shulman |
|
81 |
|
Director |
|
2003 |
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).
Collectively, these companies operate two 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.
Anthony J. Sirica
has been employed by us since September 2018 as Chief Financial
Officer and was appointed to fill a vacancy on the Board of
Directors as of such date. Prior to his appointment, Mr. Sirica
served as the Managing Member of Forum Consulting, LLC (“Forum”),
since February 2006. Forum was a New York-based management advisory
services firm that provided accounting and financial consulting
services and corporate governance support primarily to issuers
registered with the Securities and Exchange Commission (“SEC”) in
the Tri-State area, including Ark Restaurants Corp. Prior to his
tenure at Forum, Mr. Sirica served in various capacities with the
international accounting firm of BDO Seidman, LLP, including the
National Business Line Leader of their risk consulting division and
Audit Partner. Mr. Sirica is a certified public
accountant.
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.
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.
Currently, Ms. Allen also serves on the Board of Directors of
INmune Bio, Inc. (NASDAQ - INMB) and is a director of several
private companies.
Jessica Kates
was elected a director of the Company in 2022. Since 2019, Ms.
Kates has been the Co-Founder and Managing Partner of Rellevant
Partners LLC, a female-founded growth equity firm focused on the
restaurant, restaurant technology, and food & beverage
industries. Currently, Ms. Kates also serves as the Interim Chief
Financial Officer of Allonnia, LLC, and Liberation
Labs
Holdings Inc. Ms. Kates also serves on the Board of Directors of
The Good Dog Foundation and RASA. Prior to 2019, Ms. Kates was a
Partner in Trispan's restaurant-focused private equity fund, where
she served on the Board of Yardbird, Rosa Mexicano and
Stacked.
Since 2019, Ms. Kates has been the Co-Founder and Managing Partner
of Rellevant Partners LLC, a female-founded growth equity firm
focused on the restaurant, restaurant technology, and food &
beverage industries. Currently, Ms. Kates also serves as the
Interim Chief Financial Officer of Allonnia, LLC, and Liberation
Labs Holdings Inc. Ms. Kates also serves on the Board of Directors
of The Good Dog Foundation and RASA.
Bruce R. Lewin
was elected a director of the Company in February 2000. Mr. Lewin
was the President and a director of Continental Hosts, Ltd from
August 2001 until its sale in 2018. 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.
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. Mr. Novick formerly a directors of Toll Brothers,
Inc.
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 and as a strategic advisor to Ancoris Capital
Partners.
Director Diversity Matrix
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Number of Directors |
8 |
|
|
Female |
Male |
Non-Binary |
Did Not
Disclose
Gender |
|
Part I: Gender Identity |
|
|
|
|
|
Directors |
2 |
6 |
— |
— |
|
Part II: Demographic Background |
|
|
|
|
|
African American or Black |
— |
— |
— |
— |
|
Alaskan Native or Native American |
— |
— |
— |
— |
|
Asian |
— |
— |
— |
— |
|
Hispanic or Latinx |
— |
— |
— |
— |
|
Native Hawaiian or Pacific Islander |
— |
— |
— |
— |
|
White |
2 |
5 |
— |
— |
|
Two or more Races or Ethnicities |
— |
— |
— |
— |
|
LGBTQ+ |
1 |
|
Did not disclose demographic background |
1 |
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 2023
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 20, 2022. A copy of that report is set
forth below.
December 20, 2022
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, 2022.
These activities included, but were not limited to, the following
significant accomplishments during the fiscal year ended October 1,
2022:
•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, 2022, for filing
with the Securities and Exchange Commission.
Respectfully submitted,
Ark Restaurants Corp. Audit Committee
Bruce R. Lewin, Marcia Allen and Jessica Kates
AUDIT FEES AND SERVICES
During fiscal 2021 and 2022, 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 2, 2021 and October 1, 2022,
and fees for other services rendered by Cohn during those
periods.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2021 |
|
|
2022 |
|
|
|
|
|
|
|
|
|
Audit Fees |
|
$ |
295,500 |
|
|
$ |
320,250 |
|
Audit Related Fees |
|
|
26,250 |
|
|
|
36,226 |
|
Tax Fees |
|
|
-
|
|
|
|
-
|
|
All Other Fees
|
|
|
-
|
|
|
|
-
|
|
Total
|
|
$ |
321,750 |
|
|
$ |
356,476 |
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 benefit plan audits and
lease compliance audits.
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 2021 and 2022 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 as well as fees for SEC registration
services.
Audit Related Services—Audit related services include fees for
benefit plan audits and lease compliance audits.
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 2, 2021 and October 1, 2022, 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 |
|
2022 |
|
$ |
1,054,156 |
|
|
$ |
125,000 |
|
|
$ |
- |
|
|
$ |
-
|
|
|
$ |
1,179,156 |
|
|
Chief Executive Officer
|
|
2021 |
|
$ |
818,998 |
|
|
$ |
50,000 |
|
|
$ |
- |
|
|
$ |
-
|
|
|
$ |
868,998 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vincent Pascal |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior Vice President and
|
|
2022 |
|
$ |
482,857 |
|
|
$ |
100,000 |
|
|
$ |
- |
|
|
$ |
-
|
|
|
$ |
582,857 |
|
|
Chief Operating Officer |
|
2021 |
|
$ |
390,927 |
|
|
$ |
50,000 |
|
|
$ |
- |
|
|
$ |
-
|
|
|
$ |
440,927 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Anthony J. Sirica |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
President and Chief |
|
2022 |
|
$ |
482,218 |
|
|
$ |
100,000 |
|
|
$ |
- |
|
|
$ |
-
|
|
|
$ |
582,218 |
|
|
Financial Officer |
|
2021 |
|
$ |
401,106 |
|
|
$ |
100,000 |
|
|
$ |
16,656 |
|
|
$ |
-
|
|
|
$ |
517,762 |
|
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, 2022:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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 |
|
|
21,375 |
|
|
|
- |
|
|
$ |
22.50 |
|
|
06/09/24 |
|
Chief Executive Officer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vincent Pascal |
|
|
21,375 |
|
|
|
- |
|
|
$ |
22.50 |
|
|
06/09/24 |
|
Senior Vice President and |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chief Operating Officer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Anthony J. Sirica |
|
|
20,000 |
|
|
|
- |
|
|
$ |
22.30 |
|
|
09/04/28 |
|
President and Chief Financial
Officer |
|
|
7,500 |
|
|
7,500 |
(1) |
$ |
21.90 |
|
|
02/03/30 |
|
|
|
|
3,750 |
|
|
3,750 |
(2) |
$ |
10.65 |
|
|
11/19/30 |
__________________________________
|
|
|
|
|
|
|
(1) |
These options vest as follows: (i) 50% on February 3, 2022 and (ii)
50% on February 3, 2024.
|
|
(2) |
These options vest as follows: (i) 50% of November 19, 2022 and
(ii) 50% on November 19, 2024.
|
DIRECTOR COMPENSATION
Compensation Paid to Directors in 2022
In fiscal 2022, the Company paid a fee of $32,500 to each director
who was not an officer of the Company; each director who was a
full-time employee of the Company did not receive any director
fees. In addition, in fiscal 2022, the independent director who
served as chairman of the Audit Committee of the Board received an
annual retainer fee of $10,000, the independent directors who
served on the Audit, Compensation and Nominating and Corporate
Governance Committees, respectively, including the chairman of the
Audit Committee, received $1,500 for each meeting that they
attended, and each member of the Board received an additional
$1,500 for each Board meeting that they attended, plus an
additional $1,500 if such additional Board meeting attended
exceeded four hours. The Company reimburses directors for
out-of-pocket expenses incurred in connection with attending Board
of Director and committee meetings.
Short-Selling, Hedging and Pledging Prohibitions
We do not permit our directors or executive officers to speculate
in our common stock which includes, without limitation,
"short-selling" and/or buying publicly traded options. We also do
not permit our directors or executive officers to enter into
hedging transactions with respect to their ownership of our common
stock or to pledge any of our common stock.
Director Compensation Table
The following table summarizes the compensation earned by or paid
to the Company’s non-employee directors from the Company for the
year ended October 1, 2022.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name |
|
Fees Earned
or Paid in
Cash
($) |
|
Option
Awards
($) |
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Marcia Allen
(1)
|
|
$ |
44,500 |
|
|
$ |
0 |
|
|
$ |
44,500 |
|
|
Jessica Kates
(2)
|
|
$ |
22,250 |
|
|
$ |
22,662 |
|
|
$ |
44,912 |
|
|
Bruce Lewin
(1)
|
|
$ |
61,000 |
|
|
$ |
0 |
|
|
$ |
61,000 |
|
|
Stephen Novick
(1)
|
|
$ |
41,500 |
|
|
$ |
0 |
|
|
$ |
41,500 |
|
|
Steven Shulman
(1)
|
|
$ |
41,500 |
|
|
$ |
0 |
|
|
$ |
41,500 |
|
|
Arthur Stainman
(3)
|
|
$ |
12,625 |
|
|
$ |
0 |
|
|
$ |
12,625 |
|
______________
|
|
|
|
|
|
|
(1) |
Director has 5,000 currently exercisable options at an exercise
price of $22.50 per share, 2,000 currently exercisable options at
an exercise price of $21.90 per share and 1,000 currently
exercisable options at an exercise price of $10.65 per share. In
addition, Director has 2,000 currently unexercisable options at an
exercise price of $21.90 per share and 1,000 currently
unexercisable options at an exercise price of $10.65 per
share. |
|
(2) |
Director has 5,000 currently unexercisable options at an exercise
price of $17.80 per share. |
|
(3) |
Mr. Stainman was elected to serve as a director of the Company at
the 2022 annual meeting of shareholders and tendered his
resignation from the Board effective as of May 17,
2022. |
STOCK OWNERSHIP INFORMATION
Security Ownership of Certain Beneficial Owners and
Management
The following table sets forth certain information as of January
17, 2023, 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 17, 2023, our outstanding equity securities consisted
of 3,600,407 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 17, 2023. 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
17, 2023 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 (1)
|
|
Amount and Nature
of
Beneficial
Ownership
(2)
|
|
|
Percent of Class |
|
|
|
|
|
|
|
|
|
Michael Weinstein |
|
964,103 |
|
(3) |
|
26.62 |
% |
|
Bruce R. Lewin |
|
300,681 |
|
(4) (8) |
|
8.33 |
% |
|
Vincent Pascal |
|
48,333 |
|
(5) |
|
1.33 |
% |
|
Steven Shulman |
|
19,800 |
|
(6) |
|
Less than 1% |
|
Marcia Allen |
|
13,000 |
|
(6) |
|
Less than 1% |
|
Anthony J. Sirica |
|
31,250 |
|
(7) |
|
Less than 1% |
|
Stephen Novick |
|
13,000 |
|
(6) |
|
Less than 1% |
|
Jessica Kates |
|
0 |
|
|
|
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All directors and officers as a group (eight persons) |
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1,390,167 |
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(9) |
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37.36 |
% |
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Name and Address
of
Beneficial Owner (1)
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Amount and Nature
of
Beneficial
Ownership
(2)
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Percent of Class |
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Five (5%) Shareholders |
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Thomas A. Satterfield, Jr. |
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550,557 |
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(10) |
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15.29 |
% |
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15 Colley Cove Drive |
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Gulf Breeze, Florida 32561 |
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_____________________________________________
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(1) |
Unless otherwise indicated, the address for each person is c/o Ark
Restaurants Corp., 85 Fifth Avenue, New York, NY 10003. |
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(2) |
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, her or it. |
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(3) |
Includes: a 50% interest (113,500 shares) held by Michael Weinstein
in a limited liability company account maintained by his adult
children; 3,700 shares held by The Weinstein Foundation for which
Mr. Weinstein acts as trustee and has shared investment and voting
power; and 21,375 shares issuable to Mr. Weinstein pursuant to
stock options, all of which options are currently
exercisable. |
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(4) |
Includes 1,500 shares owned by Mr. Lewin in his Individual
Retirement Account (“IRA”). |
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(5) |
Includes 21,375 shares issuable pursuant to stock options
exercisable within 60 days after the date of this Proxy
Statement. |
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(6) |
Includes 13,000 shares issuable pursuant to stock options
exercisable within 60 days after the date of this Proxy
Statement. |
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(7) |
Includes 31,250 shares issuable pursuant to stock options
exercisable within 60 days after the date of this Proxy
Statement. |
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(8) |
Includes 8,000 shares issuable pursuant to stock options
exercisable within 60 days after the date of this Proxy
Statement. |
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(9) |
Includes 121,000 shares issuable pursuant to stock options
exercisable within 60 days after the date of this Proxy
Statement. |
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(10) |
Based upon information set forth on Form 4 filed by Thomas A.
Satterfield, Jr. (“Mr. Satterfield”) with the SEC on or about
December 21, 2022 with respect to the beneficial ownership reported
for Thomas A. Satterfield, Jr., 7,500 shares are held jointly with
Mr. Satterfield’s spouse; 1,000 shares are held individually by Mr.
Satterfield’s spouse in her individual capacity; 50,000 shares are
held by Tomsat Investment & Trading Co., Inc., a
corporation wholly owned by Mr. Satterfield and of which he serves
as President; and 184,607 shares are held by Caldwell Mill
Opportunity Fund, a fund managed by an entity of which Mr.
Satterfield owns a 50% interest and serves as Chief Investment
Manager. Additionally, Mr. Satterfield has been granted limited
powers of attorney to exercise voting and dispositive power with
respect to the securities held by the following parties: the
reporting person's father (32,000 shares); the reporting person's
brother (15,000 shares); the reporting person's sister (27,000
shares); the reporting person's brother-in-law (11,000 shares);
Rita Phifer (10,000 shares); the reporting person's second
brother-in-law (6,000 shares); the reporting person's nephew (2,000
shares); a trust for the reporting person's granddaughter (1,450
shares); a trust for the reporting person's second granddaughter
(500 shares); the reporting person's step-sister (2,500 shares);
the reporting person's second step-sister (2,000 shares); the
reporting person's third step-sister and spouse (7,000 shares); the
reporting person's fourth step-sister and spouse (4,000 shares);
and the reporting person's fifth step-sister and spouse (3,000
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. |
DELINQUENT SECTION 16(a) REPORTS
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, and in reliance upon written representations by or on
behalf of our directors and officers, 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 2022, except that in
fiscal 2022 Jessica Kates failed to file a Form 4 to report options
granted to her on September 2, 2022.
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 2022 fiscal year, and
the beneficial ownership of equity securities of the Company of
such individuals, see the “Security Ownership of Certain Beneficial
Owners and Management” 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: Secretary, 85 Fifth Avenue, New York, NY 10003 or call
us at (212) 206-8800
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, 2022;
however, it is not intended that the annual report for fiscal year
2022 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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Anthony J. Sirica |
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President and Chief Financial Officer |
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New York, New York |
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February 3, 2023 |
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