New York 13-3156768
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
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CALCULATION OF REGISTRATION FEE
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Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered(1) offering price per share(2) aggregate offering price Registration Fee
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Common Stock, 380,000 $9.08 $3,450,400 $862.60
par value $.01 per share
-------------------------------------------------------------------------------------------------------------------------
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(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and 457(h) of the Securities Act of 1933 on the basis of the average of the high and low prices of the Registrant's Common Stock on August 14, 2001, as reported on the NASDAQ National Market System.
The Ark Restaurants Corp. 1996 Stock Option Plan (the "Plan") has been amended to increase the number of shares of common stock, par value $0.01 per share, available for awards thereunder to 650,000. A Registration Statement on Form S-8, File No. 333-25363 was filed previously with the SEC by the Registrant to register 270,000 shares of its common stock issued or issuable under the Plan. Pursuant to General Instruction E to Form S-8, this Registration Statement is being filed to register the additional 380,000 shares of common stock issuable under the Plan. The contents of the prior Registration Statement relating to the 1996 Stock Option Plan, File No. 333-25363, are incorporated herein by reference.
Exhibit Number Description
-------------- -----------
4.1 Certificate of Incorporation of the Registrant, filed on January 4, 1983,
incorporated by reference to Exhibit 3.1 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended October 1, 1994 (the "1994 10-K").
4.2 Certificate of Amendment of the Certificate of Incorporation of the Registrant
filed on October 11, 1985, incorporated by reference to Exhibit 3.2 to the
1994 10-K.
4.3 Certificate of Amendment of the Certificate of Incorporation of the Registrant
filed on July 21, 1988, incorporated by reference to Exhibit 3.3 to the 1994
10-K.
4.4 By-Laws of the Registrant, incorporated by reference to Exhibit 3.4 to the 1994 10-K.
5 Opinion of Shack Siegel Katz Flaherty & Goodman P.C. with respect to the
legality of the Shares being registered hereby.
23.1 Consent of Shack Siegel Katz Flaherty & Goodman P.C. (contained in the opinion
filed as Exhibit 5 hereto).
23.2 Independent Auditors' Consent of Deloitte & Touche LLP.
24 Power of Attorney (contained on the signature page hereof).
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Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on this 17th day of August, 2001.
By:/s/ Michael Weinstein
------------------------------------
Michael Weinstein,
President
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Each person whose signature to this Registration Statement appears below hereby appoints Michael Weinstein and Robert Towers, and each of them acting singly, as his attorney-in-fact, to sign in his behalf individually and in the capacity stated below and to file all amendments and post-effective amendments to this Registration Statement, which amendment or amendments may make such changes and additions to this Registration Statement as such attorney-in-fact may deem necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacity and on the date indicated.
Signature Date Capacity in Which Signed
--------- ---- ------------------------
/s/ Michael Weinstein August 17, 2001 President, Chief Executive Officer and
-------------------------- Director of the Registrant
Michael Weinstein (Principal Executive Officer)
/s/ Ernest Bogen August 17, 2001 Chairman of the Board and Director of the
--------------------------- Registrant
Ernest Bogen
/s/ Robert Towers August 17, 2001 Executive Vice President, Chief Operating
--------------------------- Officer, Treasurer and Director of the Registrant
Robert Towers
/s/ Vincent Pascal August 17, 2001 Senior Vice President, Secretary and Director of
--------------------------- the Registrant
Vincent Pascal
/s/ Andrew Kuruc August 17, 2001 Senior Vice President, Chief Financial Officer,
--------------------------- Controller and Director of the Registrant
Andrew Kuruc (Principal Accounting Officer)
/s/ Paul Gordon August 17, 2001 Senior Vice President and Director of the
--------------------------- Registrant
Paul Gordon
/s/ Jay Galin August 17, 2001 Director of the Registrant
---------------------------
Jay Galin
/s/ Donald D. Shack August 17, 2001 Director of the Registrant
------------------------
Donald D. Shack
/s/ Bruce R. Lewin August 17, 2001 Director of the Registrant
---------------------------
Bruce R. Lewin
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EXHIBIT INDEX
Exhibit
Number Description
------- -----------
4.1 Certificate of Incorporation of the Registrant, filed on January 4, 1983,
incorporated by reference to Exhibit 3.1 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended October 1, 1994 (the "1994 10-K").
4.2 Certificate of Amendment of the Certificate of Incorporation of the Registrant
filed on October 11, 1985, incorporated by reference to Exhibit 3.2 to the
1994 10-K.
4.3 Certificate of Amendment of the Certificate of Incorporation of the Registrant
filed on July 21, 1988, incorporated by reference to Exhibit 3.3 to the 1994
10-K.
4.4 By-Laws of the Registrant, incorporated by reference to Exhibit 3.4 to the 1994 10-K.
5 Opinion of Shack Siegel Katz Flaherty & Goodman P.C. with respect to the
legality of the Shares being registered hereby.
23.1 Consent of Shack Siegel Katz Flaherty & Goodman P.C. (contained in the opinion
filed as Exhibit 5 hereto).
23.2 Independent Auditors' Consent of Deloitte & Touche LLP.
24 Power of Attorney (contained on the signature page hereof).
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Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Form S-8 Registration Statement 380,000 shares of Common Stock of Ark Restaurants Corp.
Ladies and Gentlemen:
We have acted as counsel to Ark Restaurants Corp., a New York corporation (the "Company"), in connection with the filing with the Securities and Exchange Commission of a registration statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), relating to 380,000 shares of the Company's Common Stock, par value $.01 per share ("Common Stock"), which may be issued and sold pursuant to the Company's 1996 Stock Option Plan (the "Plan").
In connection with this opinion, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of (i) the Plan; (ii) the Registration Statement; (iii) the Certificate of Incorporation, as amended, of the Company; (iv) the By-Laws of the Company, as restated on October 15, 1985 and amended on February 12, 1988; (v) proceedings of the Board of Directors and Shareholders of the Registrant; and (vi) such other documents as we have deemed necessary or appropriate as a basis for the opinion set forth below. In our examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such latter documents. As to any facts material to this opinion that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that the issuance of the shares of Common Stock upon the exercise of options granted or to be granted under the Plan has been duly authorized and that such shares of Common Stock, when issued and delivered upon exercise of the options granted in accordance with the terms of the Plan, and assuming full payment for the shares of Common Stock thereby issued, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5 to the Registration Statement.
The law covered by the opinions expressed herein is limited to the corporate laws of the State of New York.
Very truly yours,
By:/s/ Paul S. Goodman
---------------------------------
Paul S. Goodman
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We consent to the incorporation by reference in this Registration Statement on Form S-8 of Ark Restaurants Corp. of our report dated December 1, 2000, appearing in the Annual Report on Form 10-K of Ark Restaurants Corp. for the year ended September 30, 2000.
DELOITTE & TOUCHE LLP
New York, New York
August 8, 2001