April 1, 2020
Mr. Robert Shapiro
Senior Staff Accountant
United States Securities and Exchange Commission
Division of Corporation Finance
100 F Street N.E.
Washington, D.C. 20549
Re: Ark Restaurants Corp.
Form 10-K for the Fiscal Year Ended September 28, 2019
Filed December 17, 2019
Form 8-K
Furnished February 10, 2020
File No. 001-09453
Dear Mr. Shapiro:
We are responding to your letter dated March 24, 2020, in which you provided comments on the Ark Restaurants Corp.’s (the “Company”, “we” or “our”) Annual Report on Form 10-K for the Fiscal Year Ended September 28, 2019 filed on December 17, 2019 and Form 8-K furnished on February 10, 2020. We appreciate your comments. For ease of reference, your comments are repeated in italics below, immediately followed by the Company’s response.
Form 10-K for the fiscal year ended September 28, 2019
Consolidated Statements of Income, page F-3
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1. | We note your presentation of the sub-total "Restaurant Operating Income" on the face of your statements of income and that this sub-total excludes certain operating expenses for restaurant-related charges for impairments and asset write-offs. Please tell us your basis for presenting this sub-total, which appears to be a non-GAAP financial measure, on the face of the income statement, and for excluding restaurant-related charges from it. Refer to Item 10(e)(1)(ii)(C) of Regulation S-K. |
Response: In future filings, including our upcoming Form 10-Q for the quarter ended March 29, 2020, we will remove the sub-total “Restaurant Operating Income” on the face of our statement of income for all periods presented.
Mr. Robert Shapiro
United States Securities and Exchange Commission
April 1, 2020
Page 2 of 2
Form 8-K furnished February 10, 2020 Exhibit 99.1
Ark Restaurants Announces Results for the First Quarter of 2020, page 1
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2. | Please give prominence, here and in your periodic reports on Forms 10-K and 10-Q, to your GAAP measures of performance rather than your non-GAAP measures. Refer to Item 10(e)(1)(i)(A) of Regulation S-K. Please also reconcile non-GAAP measures of performance to the most directly comparable GAAP measure, net income. Refer to Compliance and Disclosure Interpretations on Non-GAAP Financial Measures, Question 103.02. |
Response: In future filings, including our upcoming Form 10-Q for the quarter ended March 29, 2020 and upcoming Form 8-K announcing results for such quarter, we will give prominence to our GAAP measures of performance rather than our non-GAAP measures, and we will provide a reconciliation of any non-GAAP measures of performance to the most directly comparable GAAP measure, net income.
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In connection with responding to your comments, the Company acknowledges that:
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| • | | The Company is responsible for the adequacy and accuracy of the disclosure in the filings; |
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| • | | staff comments or changes to disclosure in response to staff comments do not foreclose the Commission from taking any action with respect to the filings; and |
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| • | | the Company may not assert staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States. |
We trust that this letter is fully responsive to your comments. Please do not hesitate to contact the undersigned at 212-206-8804 if you have any further questions.
Respectfully,
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ARK RESTAURANTS CORP. |
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By: | | /s/ Anthony J. Sirica |
Anthony J. Sirica |
Chief Financial Officer |
(Principal Financial and Accounting Officer) |