EXHIBIT 10.01 


SECURITIES PURCHASE AGREEMENT


          THIS
SECURITIES PURCHASE AGREEMENT, dated as of December 9, 2011 (this “Agreement”) is by and among Ark Restaurants
Corp., a New York corporation (the “Company”),
and the Estate of Irving Hershkowitz (the “Seller”).
The Company and the Seller are collectively referred to herein as the “Parties,” and each is a “Party.” 


          WHEREAS,
Seller owns approximately 293,000 shares of common stock, par value $0.01 per
share (the “Common Stock”), of the
Company; and 


          WHEREAS,
the Company desires to purchase from the Seller, and the Seller desires to sell
to the Company, 250,000 shares of Common Stock (the “Shares”) upon the terms and subject to the conditions
hereinafter set forth. 


          NOW,
THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements herein contained and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereby agree as follows: 


ARTICLE I


Purchase and Sale of the Shares


          SECTION
1.01.  Purchase and Sale of the Shares.  At the
Closing, upon the terms and subject to the conditions set forth in this
Agreement, the Seller shall sell to the Company and the Company shall purchase
from the Seller, the Shares at a purchase price of $12.50 per Share (the “Acquisition”). 


          SECTION
1.02.  Payments.  The total purchase price for the
Shares shall be Three Million One Hundred Twenty Five Thousand Dollars
($3,125,000) (the “Purchase Price”),
which amount shall be paid by the Company to the Seller in accordance with the
following schedule: (a) One Million Dollars ($1,000,000) shall be payable upon
the Closing of the Acquisition and (b) the balance shall be payable in twenty-four
(24) equal monthly installments of $88,541.67 each, commencing on the later to
occur of December 1, 2012 and the Closing, and ending on November 1, 2014,
pursuant to a promissory note, substantially in the form of Exhibit A hereto
(the “Note”). This Agreement and
the Note are collectively referred to herein as the “Loan Documents”). Any dividend or distribution paid or payable
to the Seller in respect of the Shares on or prior to the Closing shall be
credited to the payment of the Purchase Price and shall reduce the amount
payable by the Company to the Seller upon the Closing. 


ARTICLE II


Representations and Warranties of the Seller





          The
Seller hereby represents and warrants to the Company, as of the date of this
Agreement and the Closing, as follows: 


          SECTION
2.01.  Authority; Execution and Delivery.  The
Seller has full right, power and authority and has taken all required action
necessary to permit the Seller to execute and deliver this Agreement and to
perform all of the obligations contained herein and therein, and to execute,
deliver and perform all of the obligations contained in all other instruments
or agreements required hereby or incident or collateral hereto. 


          SECTION
2.02.  Enforceability.  All action required to be taken by
the Seller in order to enter into this Agreement has been taken. This Agreement
constitutes the valid and legally binding obligation of the Seller, enforceable
against the Seller in accordance with its terms.  


          SECTION
2.03.  No Conflicts; Consents.  Except as set forth
in Section 4.04, no consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority is required on the part of the
Seller in connection with the consummation of the transactions contemplated by
this Agreement. Neither the execution, delivery nor performance of this
Agreement by the Seller conflicts with or violates the terms of or constitutes
a breach of or a default under any contract, mortgage, instrument or agreement
to which the Seller is a party or by which it or its properties may be bound. 


          SECTION
2.04.  Title and Estate Tax Liens.  At the Closing,
the Company will acquire, upon payment of the Purchase Price, good and valid
title to the Shares free and clear of any liens, loans and encumbrances, other
than the New York State statutory lien for estate taxes (the “New York Lien”). The Federal statutory lien
for estate taxes (the “Federal Lien”)
and the New York Lien are referred to together as the “Estate Tax Liens”. All of the Shares have
been duly authorized and validly issued, are fully paid and non-assessable. At
the Closing, the Seller shall deliver to the Company the stock certificates
evidencing the Shares, accompanied by duly executed stock powers. None of the
Shares are or will be subject to any voting proxy, voting trust, voting
agreement or right of first offer, right of first refusal, right of co-sale or
similar right. The Estate Tax Returns (as defined below) constitute all of the
tax returns required to be filed by Seller in order to satisfy and discharge
any liability secured by the Estate Tax Liens. The payment of all amounts
reflected in the Estate Tax Returns shall satisfy and discharge in full any and
all liabilities secured by the Estate Tax Liens. 


          SECTION
2.05.  Proceedings.  No suit, action, arbitration,
order, investigation or other proceeding is pending against the Seller which
(a) questions or challenges the validity of this Agreement or any action taken
or to be taken by the Seller pursuant to the terms hereof, or (b) if adversely
adjudicated, would reasonably be expected to prevent or materially affect the
ability of the Seller to perform its obligations hereunder. 


          SECTION
2.06.  Information.  Seller understands that the
Shares may change in value after the execution of this Agreement and Seller
confirms it has received or has had full access to all the information it
considers necessary or appropriate to make an informed investment decision with
respect to the sale of the Shares, including the Company’s publicly available 


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documents,
which are available on the website of the Securities and Exchange Commission (“SEC”)
at www.sec.gov. Seller has not relied on any other representations or
information in making its investment decision, whether written or oral,
relating to the Company, its operations and/or its prospects. 


ARTICLE III


Representations and Warranties of the Company


          The
Company hereby represents and warrants to Seller, as of the date of this
Agreement and the Closing, as follows: 


          SECTION
3.01.  Authority; Execution and Delivery.  The
Company is duly incorporated, validly existing and in good standing under the
laws of the State of New York and has full right, power and authority and has
taken all required action necessary to permit the Company to execute and
deliver each of the Loan Documents and to perform all of the obligations
contained therein, and to execute, deliver and perform all of the obligations
contained in all other instruments or agreements required thereby or incident
or collateral thereto. 


          SECTION
3.02.  Enforceability.  All action required to be
taken by the Company in order to enter into the Loan Documents has been taken.
The Loan Documents, when executed and delivered by the Company, each shall
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms. 


          SECTION
3.03.  No Conflicts; Consents.  No consent,
approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state or local
governmental authority is required on the part of the Company in connection
with the consummation of the transactions contemplated by the Loan Documents,
other than filings with the Securities and Exchange Commission. Neither the
execution, delivery nor performance of any of the Loan Documents by the Seller
conflicts with or violates the terms of or constitutes a breach of or a default
under any contract, mortgage, instrument or agreement to which the Seller is a
party or by which it or its properties may be bound. 


          SECTION
3.04.  Proceedings.  No suit, action, arbitration,
order, investigation or other proceeding is pending against the Company which
(a) questions or challenges the validity of any of the Loan Documents or any
action taken or to be taken by the Company pursuant to the terms thereof, or
(b) if adversely adjudicated, would reasonably be expected to prevent or
materially affect the ability of the Company to perform its obligations
thereunder. 


ARTICLE IV


Covenants and Other Agreements


          SECTION
4.01  Confidentiality.  Any information (except the
material terms of the transactions contemplated hereunder and other publicly
available or freely usable material obtained from another source) respecting
either Party or their respective affiliates will be kept in 


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strict
confidence by the receiving Party and its agents. Except as required by law,
the receiving Party will disclose such information only to its Affiliates,
managers, officers, employees or agents and, to the extent necessary, its
attorneys, accountants, consultants and professional advisors. All such persons
shall be advised of the confidential nature of the information and shall
themselves be required by such party to keep such information confidential. 


          SECTION
4.02   Access to Information.  Seller acknowledges
that the Company may be in possession of material nonpublic information
regarding the Company and, except in the case of fraud or willful misconduct,
irrevocably waives any claims against the Company and its officers, directors,
employees, agents or representatives that may arise from the Company’s
possession of such information and the Seller’s lack thereof in connection with
the transaction contemplated hereby. 


          SECTION
4.03.  Fees and Expenses.  Except as otherwise set
forth in this Agreement, all expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the Party
incurring such expenses. 


          SECTION
4.04.  Estate Taxes.  Seller shall file the United
States Estate (and Generation-Skipping Transfer) Tax Return (Form 706)with the Internal Revenue Service and the New York State Estate Tax Return (Form
ET-706) with the New York State Department of Taxation and Finance (the “Estate
Tax Returns”) and pay all taxes reflected in the Estate Tax Returns
within the time required by law. Seller shall use its commercially reasonable
efforts to obtain from the Internal Revenue Service a discharge of the Federal
Lien arising under Section 6324(a) of the Internal Revenue Code as promptly as
possible. 


ARTICLE V


Closing


          SECTION
5.01.  Time; Place.  The closing of the purchase and
sale of the Shares (the “Closing”) will take place not later than
five (5) days following the satisfaction or waiver of the Closing Conditions.
The “Closing Conditions” shall
consist solely of the following: (i) the Internal Revenue Service shall have
discharged the Federal Lien on the Shares arising under Section 6324(a) of the
Internal Revenue Code and a copy of such discharge shall have been furnished to
the Company and (ii) Seller shall have performed in all material respects the
covenants set forth in Section 4.04 hereof. Seller shall use its best efforts
to satisfy the Closing Conditions as promptly as possible. At the Closing, (i)
Seller shall deliver to the Company a certificate dated the Closing Date duly
signed by Seller stating that the Closing Conditions have been satisfied and
the representations and warranties of the Seller contained in this Agreement
are true and correct as of the Closing Date, (ii) Seller shall transfer to the
Company clear and marketable title to the Shares, free and clear of any and all
liens, claims, encumbrances and adverse interests of any kind other than the
New York Lien, by delivering to the Company the certificates for the Shares in
negotiable form, duly endorsed in blank, or with stock transfer powers executed
and attached thereto, and (iii) the Company shall deliver to Seller (A) the sum
of $1,000,000 by wire transfer to an account designated by Seller and (B) the
Note, duly executed by an authorized officer of the Company, together with any
payments due under the Note at the time of the Closing, if any.


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          SECTION
5.02   Termination.  In the event the Internal
Revenue Service shall not have discharged the Federal Lien on the Shares
arising under Section 6324(a) of the Internal Revenue Code by the third
anniversary of this Agreement, either the Company or the Seller may elect to
terminate this Agreement by providing written notice of termination to the
other party. 


ARTICLE VI


Indemnification and Release


          SECTION
6.01.  Indemnification.  The Seller and the Company
each shall hold harmless and indemnify the other Party from and against, and
shall compensate and reimburse the other Party for, any loss, damage, injury,
liability, claim, demand, settlement, judgment, award, fine, penalty or charge
which is suffered or incurred by the other Party or to which the other Party
may otherwise become subject and which arises from or as a result of, or is
connected with any breach of any representation, warranty, covenant or other
agreement made by the indemnifying Party in this Agreement, provided that (i)
the aggregate liability of the Seller hereunder shall in no event exceed the
amount of the Purchase Price actually received by the Seller (provided that this
limitation shall not apply to any liability for taxes), (ii) except in the case
of indemnification for claims of third parties, neither Party shall be liable
for any special, indirect, consequential, punitive, exemplary or incidental
damages, and (iii) the Company shall not have the right of offset, deduction or
recoupment with respect to the Note for any claims or damages arising hereunder
unless and until its right to same shall have been established by the final
determination of a court of competent jurisdiction, not subject to further
appellate review. In addition, and without limiting the foregoing, the Seller
shall hold harmless and indemnify the Company from and against, and shall
compensate and reimburse the Company for, any loss, damage, injury, liability,
claim, demand, settlement, judgment, award, fine, penalty or charge which is
suffered or incurred by the Company or to which the Company may otherwise
become subject and which arises from or as a result of, or is connected with
any liability or obligation of the Seller for any federal, state or local
estate tax imposed by any court, administrative agency, or governmental or
regulatory authority or instrumentality. 


ARTICLE VII


General Provisions


          SECTION
7.01.  Assignment.  This Agreement and the rights
and obligations hereunder shall not be assignable or transferable by any Party
(including by operation of law or otherwise) without the prior written consent
of the other Party, except that this Agreement and the Note and any rights hereunder
and thereunder may be assigned or transferred by the Seller to the
beneficiaries of the estate. Any attempted assignment in violation of this
Section 7.01 shall be void. 


          SECTION
7.02.  No Third-Party Beneficiaries.  The terms and
provisions of this Agreement are intended solely for the benefit of the Parties
and their permitted assigns and 


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nothing
herein expressed or implied shall give or be construed to give to any person,
other than the Parties and such assigns, any legal or equitable rights
hereunder. 


          SECTION
7.03.  Specific Performance.  The Parties agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the Parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof
in the courts of the State of New York and of the United States in the State of
New York, sitting in New York County, in addition to any other remedy to which
they are entitled in accordance herewith. 


          SECTION
7.04.  Notices.  All notices, requests and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed given (i) when delivered personally, (ii) on the second
business day after being mailed by certified or registered mail, return receipt
requested, (iii) the next business day after delivery to a recognized overnight
carrier, or (iv) upon transmission and confirmation of receipt by a facsimile
operator if sent by facsimile, to the Parties at the following addresses or
facsimile numbers (or to such other address or facsimile number as such party
may have specified by notice given to the other Party pursuant to this
provision): 


	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (i) if to the Seller,

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Estate of Irving
 Hershkowitz

 
	
  

 	
  

 	
 c/o Big Geyser Inc.

 57-65 48th Street

 Maspeth, New York 11378

 Attn: Lewis Hershkowitz, Executor

 Telecopy: (718) 821-7676

 
	
  

 	
  

 	
  

 
	
  

 	
 with a copy to:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Meltzer, Lippe, Goldstein
 & Breitstone, LLP

 
	
  

 	
  

 	
 190 Willis Avenue

 Mineola, New York 11501

 Attn: Ira R. Halperin, Esq.

 Telecopy: (516) 747-0653

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (ii) if to the Company,

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Ark Restaurants Corp.

 
	
  

 	
  

 	
 85 Fifth Avenue

 New York, New York 10003

 Attn: Chief Financial Officer

 Telecopy: (212) 206-8814

 


6









	
  

 	
  

 	
  

 
	
  

 	
 with a copy to: 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Ellenoff Grossman &
 Schole LLP

 150 East 42nd Street, 11th Floor

 New York, New York 10017

 Attn: Geoffrey W. Parnass, Esq.

 Telecopy : (212) 370-7889 

 


          SECTION
7.05.  Interpretation; Exhibits and Schedules; Certain Definitions.  This
Agreement will be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting or causing any
instrument to be drafted. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. All Exhibits annexed hereto or referred to
herein are hereby incorporated in and made a part of this Agreement as if set
forth in full herein. Any capitalized terms used in any Exhibit but not
otherwise defined therein shall have the meaning as defined in this Agreement. 


          SECTION
7.06.  Counterparts.  This Agreement may be executed
in one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed, by PDF, facsimile or original signatures, by each of the Parties
and delivered to the other Party. 


          SECTION
7.07.  Entire Agreement.  This Agreement and the
Note along with the Exhibits thereto, contains the entire agreement and
understanding among the Parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter. None of the Parties shall be liable or bound to any other Party in any
manner by any representations, warranties or covenants relating to such subject
matter except as specifically set forth herein. 


          SECTION
7.08.  Severability.  If any provision of this
Agreement (or any portion thereof) or the application of any such provision (or
any portion thereof) to any person or circumstance shall be held invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof (or the remaining portion thereof) or the application of such provision
to any other persons or circumstances. Upon such a determination, the Parties
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the Parties as closely as possible in an acceptable manner
in order that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible. 


          SECTION
7.09.  Governing Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without giving effect to the conflicts of law principles thereof. 


          SECTION
7.10.  WAIVER OF JURY TRIAL.  EACH PARTY HEREBY
WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR 


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INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY. 


          SECTION
7.11.  Further Assurances; Cooperation.  At any time
or from time to time after the date hereof, the Parties will execute and
deliver to the other Party such other documents and instruments, provide such
materials and information and take such other actions as the other Party may
reasonably request to consummate the transactions contemplated by this
Agreement and otherwise to cause the other Party to fulfill its obligations
under this Agreement and the transactions contemplated hereby. Each Party
agrees to use commercially reasonable efforts to cause the conditions to its
obligations to consummate the transactions contemplated hereby to be satisfied.



          SECTION
7.12.  Representation by Counsel.  Each Party represents
and agrees with each other that it has been represented by or had the
opportunity to be represented by independent counsel of its own choosing, and
that it has had the full right and opportunity to consult with its respective
attorney(s) to the extent, if any, that it desired, it availed itself of this
right and opportunity, that it or its authorized officers (as the case may be)
have carefully read and fully understand this Agreement in its entirety and
have had it fully explained to them by such Party’s respective counsel, that
each is fully aware of the contents thereof and its meaning, intent and legal
effect, and that it or its authorized officer (as the case may be) is competent
to execute this Agreement and has executed this Agreement free from coercion,
duress or undue influence. 


[Signature page follows]


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          IN
WITNESS WHEREOF, the Company and the Seller have duly executed this Agreement
as of the date first written above. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 ARK
 RESTAURANTS CORP.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
   /s/ Michael Weinstein

 
	
  

 	
  

 	 



 
	
  

 	
  

 	
   Name:

 	
      Michael Weinstein

 
	
  

 	
  

 	
     Title:

 	
      Chief Executive Officer

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 ESTATE OF
 IRVING HERSHKOWITZ

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
   /s/ Lewis Hershkowitz

 
	
  

 	
  

 	 



 
	
  

 	
  

 	
 Lewis Hershkowitz,
 Executor