Exhibit 10.1



TERMINATION AND CONSULTING AGREEMENT


 


This Termination and Consulting
Agreement (the “Agreement”) is made this 5th day of January, 2012, by and between Robert Towers (“Towers”),
residing at 37 Marbourne Drive, Mamaroneck, New York 10543 and ARK Restaurants Corp. (“ARK”), a New York corporation
with offices at 85 Fifth Avenue, 14th Floor, New York, New York 10003-3019.


 


WHEREAS, ARK has employed
Towers since November 1983 (the “Employment”), pursuant to which Towers was last employed as President, Chief Operating
Officer and Treasurer of ARK;


 


WHEREAS, Towers and ARK
have agreed that effective as of December 31, 2011 Towers will resign all of his positions as an officer (including, without limitation,
President) and employee of ARK; and


 


WHEREAS, the parties herein
wish to terminate the Employment on the terms and conditions contained herein.


 


NOW THEREFORE, it is agreed
as follows:




Towers acknowledges and agrees that he has received all standard compensation payments and reimbursements due to him by ARK.
No other benefits or payments are to be provided to Towers by ARK or any other party hereto, except as provided in this Agreement.
In return for this Agreement and for Towers’ voluntary resignation from all positions with ARK and in full and final settlement,
compromise and release by Towers of ARK the parties hereto agree to the following:


 


1.                 
Employment. It is agreed that Towers’ Employment is hereby terminated effective
January 1, 2012 (“Termination Date”). In this connection Towers will execute a letter of resignation, a copy of which
is attached as Exhibit “A” hereto.


 


2.                 
Options. All options and similar rights held by Towers to purchase common stock and
other securities of ARK are hereby fully vested, and may be exercised until their date of expiration. 


 


3.                 
Severance. Towers has elected to receive a lump sum severance payment of Four Hundred
Thousand Four Hundred ($400,400) Dollars equal to Towers’ last year salary. This severance money shall be paid to Towers
on or about January __, 2012, but no later than 30 days after the execution of this Agreement. This is in full satisfaction of
all obligations of ARK to Towers, except as otherwise set forth herein, and in exchange for the covenants on Towers’ part
contained herein. Towers will be entitled to any other rights, compensation (excluding severance payments), and/or benefits as
may be due to him in accordance with the provisions of any benefit plans or programs of the ARK in which he is presently enrolled.

 





 


4.                 
Loan Forgiveness. As of the date hereof, Towers is indebted to ARK in the amount of
$67,778.13, with respect to interest bearing loans made to him in connection with the receipt of stock options and with respect
to certain other executive loans (together the “Loans”), and upon the execution of this Agreement the Loans shall be
and are forgiven.


 


5.                 
Medical. Towers and his wife shall continue to be covered by ARK’s medical, dental
and prescription drug insurance plans on the same basis as is in effect on the date of this Agreement, subject to changes of general
applicability for senior executive officers. In addition, ARK shall provide supplemental insurance coverage via ArmadaCare’s
Supplemental Executive Health Reimbursement Program, or similar program. The foregoing coverage will be provided for a period of
three (3) years ending December 31, 2014 (the “Benefits Term”). ARK shall pay a maximum of $25,000 per year for all
medical and dental coverage for Towers and his wife. In the event ARK pays less than $25,000 in any one year for the foregoing
benefits, it shall pay Towers the difference in January of the following year. In the event ARK, can no longer provide benefits,
or Towers elects not to be covered under ARK’s insurance plan, Towers will be paid up to $25,000 per year in lieu of the
benefits. In the event that Towers or his wife become ineligible for ARK’s medical plan COBRA coverage as a result of becoming
eligible for Medicare, ARK shall provide additional Medicare coverage through a supplemental Medicare plan and supplemental dental,
drug and vision care plan, if available. In the event that Towers obtains other employment before the end of the Benefits Term,
which provides medical benefits, he shall continue to be covered by ARK until the benefits provided by his new employer become
effective. Once such coverage is provided to Towers by his new employer ARK will cease making payments on his behalf. 


 


6.                 
Cooperation. Towers agrees that after the Termination Date, if necessary and upon the
request of ARK, he shall cooperate with and assist ARK in undertaking and preparing for legal and other proceedings relating to
the affairs of ARK and its subsidiaries. Towers shall be reimbursed for the reasonable expenses incurred in connection with any
such cooperation and/or assistance, and, after the Termination Date, shall receive from ARK additional reasonable per diem compensation
in connection therewith.


 


Subject to the Covenants and Restrictions set
forth herein, Towers may engage in, invest in, participate in, or otherwise enter into, any other businesses or professions of
every nature and description, now or hereafter existing, individually or with others, whether or not such businesses or professions
compete directly with ARK.


 


7.                 
Covenants and Restrictions.


 


(i)                
Towers acknowledges that during his employment by ARK and his time as an officer and director
of ARK, he has acquired or been involved in the development of certain confidential information and trade secrets of ARK, its subsidiaries
and affiliates. 

 






Towers hereby covenants and agrees that
Towers will not at any time subsequent to the date hereof and continuing for a period of Three (3) years from the date of this
Agreement, directly or indirectly, reveal, divulge, use (whether or not for his own profit) or make known to any person or entity
any Confidential Information (as hereinafter defined) made known to Towers or of which Towers has become aware, regardless of whether
developed, prepared, devised or otherwise created in whole or in part by the efforts of Towers and (1) except to the extent so
authorized in writing by ARK, (2) except as required by law, or (3) except with Tower’s accountant(s), lawyer(s), and members
of his immediate family on a need-to-know basis, whom he shall ask to keep the terms confidential.


(ii)              
For purposes of this Agreement, the term “Confidential Information” shall mean
(i) the existence and terms of this Agreement and the nature of the relationship contemplated hereby, (ii) any technical, scientific
or engineering information relating to the products and/or services of ARK or ARK’s affiliates, including any entity with
whom ARK has entered into an acquisition agreement or other binding or non-binding agreement related to the acquisition of a third
party by ARK hereto , (iii) information relating to any customer of ARK, including without limitation, the names, addresses, telephone
numbers and sales records of, or pertaining to any such customer, and (iv) price lists, sales, sales volume, sales methods, methods
of operation, buildings, sales proposals, leasing methods, leasing sources, identity of clients, prospective clients, sources of
supplies, building materials, computer programs, software and hardware and similar information pertaining to ARK. Notwithstanding
anything contained herein to the contrary, Confidential Information as used herein shall not include that which (i) was in the
public domain prior to receipt hereunder, (ii) subsequently becomes known to Towers as a result of disclosure by third parties
not in the course of this Agreement, (iii) subsequently comes into the public domain through no fault of Towers, (iv) information
not clearly marked “confidential” or (v) information neither identified as “confidential”
by ARK or reasonably treated by ARK to prevent the unauthorized use, disclosure, dissemination, or publication.


 


(iii)            
Towers further covenants and agrees that upon the execution of this Agreement, he has delivered
to ARK (and has not retained any copies of) all tangible embodiments of all Confidential Information in his possession, including,
without limitation, all account lists, records and data related to all clients of ARK and any written or electronic files related
to the foregoing. Furthermore, Towers will retain any and all intangible Confidential Information in trust for the sole benefit
of ARK, and will not divulge or deliver or show any of such Confidential Information to any unauthorized person and will not make
use of or in any manner seek to turn to account any of such Confidential Information in an independent business however unrelated
to the business of ARK. 


 


8.                 
Proprietary Property.


 


(i)                
 The parties hereto hereby agree that Proprietary Property (as hereinafter defined) shall
be the sole and exclusive property of ARK. For purposes







hereof, the term ‘Proprietary Property” shall mean tangible
inventions, discoveries, improvements and ideas, whether patentable or not, developed prior to the date hereof solely by Towers
or jointly with others, which relate to ARK’s business, including any of ARK’s Confidential Information or any of such
companies’ products, services, processes, technology, research, product development, leases or marketing programs.





 


(ii)              
Towers shall promptly disclose to ARK in writing all Proprietary Property, including those
in the formative ages, in his possession and, in accordance with Section 8(iii) above, shall promptly deliver to ARK any and all
Proprietary Property that he may have in his possession.


 


(iii)            
Towers hereby agrees and acknowledges that he has no present right, title or interest in or
with respect to any Proprietary Property and will not in the future acquire any such right, title or interest therein without the
written consent of ARK. In addition, Towers covenants and agrees that he will at any time, promptly upon the request and at the
expense of ARK, execute any and all patent and trademark applications and assignments so requested and take any and all action
as required by ARK to perfect and maintain the rights and interests of such party or parties in and with respect to the Proprietary
Property. 


 


(iv)            
During the three year period from the date of this Agreement, Towers will not, directly or
indirectly, lecture upon, publish articles concerning, use, disseminate, disclose, sell or offer for sale any Proprietary Property
without the prior written permission of ARK.


 


9.                 
Termination. The provisions of this Agreement shall survive the expiration or any termination
hereof, and shall remain in full force and effect following such expiration or termination to the maximum extent permitted by applicable
law. The Parties specifically acknowledges and agrees that the covenants, agreements and representations made by them hereunder
may be enforced against the other in accordance with their terms for the maximum permissible duration following any expiration
or termination, for whatever reason, of this Agreement. 


 


10.             
Disparagement; Public Announcements. The Parties covenant and agree that they shall
not disclose any negative information (whether or not in the public domain or otherwise confidential) regarding any other party
to this Agreement, or any of their respective principals, officers, directors, shareholders or affiliates, make any negative comments
or otherwise disparage or reflect unfavorably upon the reputation, image and/or character of any such party. Neither Party shall
make any public announcements regarding this Agreement, the subject matter hereof or any other matter related to any of the other
parties hereto, without the permission of the other Party and further agree that the content and/or wording of any press release
or other public disclosure that refers to Towers’ separation from ARK as President, Chief Operating Officer and Treasurer,
hereunder shall be mutually agreed to by and between ARK and Towers in advance of its release.








ARK agrees that it will
provide to Towers, at his request, a favorable and appropriate letter of recommendation to prospective employers of Towers. Towers
agrees to request that all prospective employers direct their requests for reference information to ARK's Chief Executive Officer.
ARK agrees that requests for reference information concerning Towers which it receives shall be directed to its Chief Executive
Officer.


 


11.             
 Waiver and Release. In consideration of the payments to be made and consideration
set forth in Sections 3, 4 and 5 of this Agreement, Towers irrevocably and unconditionally releases and forever discharges, gives
up and waives any and all claims and rights he had, has or may have against ARK existing at any time up to and including the date
of this Agreement. This release shall also apply to all of the directors, officers, shareholders, affiliates, agents, employees
and representatives of ARK, and against all who succeed to any of the rights and responsibilities of any of the foregoing parties
(collectively, the “Towers’ Released Parties”). 


 


12.             
Indemnity. Specifically, Towers releases the Towers’ Released Parties from any
and all claims, charges, demands, suits, rights or causes of action, at law or equity or otherwise, including, but not limited
to, claims, charges, demands, suits, causes or rights of action relating to breach of contract or public policy, wrongful, retaliatory
or constructive discharge, any claims under Title VII of the Civil Rights Act of 1964, as amended, claims under the Age Discrimination
in Employment Act of 1967, as amended, the Americans with Disabilities Act, 42 U.S.C. Sections 12116, et seq., The Family Medical
Leave Act, The New York Civil Rights Law, The New York Workers’ Compensation Law, claims for any other type of discrimination,
personal injury, additional compensation or fringe benefits, and any and all rights to or claims for continued employment, attorneys’
fees or damages (including contract, compensatory, punitive or liquidated damages), or equitable relief which Towers may ever have
had, has now or may ever have in the future or which Towers’ heirs, executors or assigns can or shall have, against any or
all of them, whether known or unknown, on account of or arising out of his employment with ARK (including its subsidiaries or affiliates)
or any related entities or his separation from such employment. Towers specifically waives the benefit of any statute or rule of
law which, if applied to this Agreement, would otherwise exclude from its binding effect any claims not now known by Towers to
exist. Notwithstanding the foregoing, this release shall not include (1) any claims based on obligations created by or reaffirmed
in this Agreement and (2) any act, omission or transaction for which Towers’ Released Parties may not be relieved of liability
under applicable law.


 


Except as expressly provided below,
ARK and its successors and assigns do hereby irrevocably, unconditionally and completely release and forever discharge Towers,
his spouse, representatives, heirs, successors, and assigns (collectively “ARK Released Parties”) from all claims,
rights, demands, actions, obligations, liabilities, and causes of action of every kind and character, known or unknown, matured
or unmatured, which ARK may have now or in the future arising from any act or omission or condition occurring on or prior to the
Effective Date (including, without limitation, the future effects of such acts, omissions, or conditions), arising from or in any
way related to








Towers’ employment or position as an Officer or Director, including, without limitation, the termination thereof,
whether based on tort, contract (express or implied), or any federal, state, or local law, statute, or regulation. Notwithstanding
the foregoing, this release shall not include (1) any claims based on obligations created by or reaffirmed in this Agreement and
(2) any act, omission or transaction for which an Officer or Director may not be relieved of liability under applicable law.



For six (6) years following
the date of Towers’ separation as an officer and/or director of ARK, ARK will cover Towers by such officers and directors
insurance coverage on substantially the same terms and levels that it provides to its senior executive officers, at ARK’s
sole cost and expense. In addition, ARK shall indemnify and hold Towers harmless to the fullest extent provided by its Articles
of Incorporation and Bylaws as they exist on the date hereof with regards to actions or inactions in relation to Towers’
duties performed at ARK on or before the date of this Agreement.


 


13.             
Representation and Covenants of Towers. Towers represents and certifies that he: 


 


(i)                
understands the importance of this agreement and has read its entire contents carefully;


 


(ii)              
has been advised and encouraged by ARK to consult with an attorney of Towers’ choosing;


 


(iii)            
has been given at least twenty-one (21) days to review this Agreement and to consult with
an attorney prior to execution of this Agreement;


 


(iv)            
has been advised that any modifications, material or otherwise made to this Agreement does
not restart or affect in any manner the original twenty-one (21) consideration period;


 


(v)              
fully understands the provisions of the Agreement;


 


(vi)            
has determined that it is in his best interest to enter into this Agreement;


 


(vii)          
 has not been influenced to sign this Agreement by any statement or representation by ARK
or any other party to this Agreement, or any party acting on behalf of any of the foregoing, not contained in this Agreement;


 


 


understands that he may
revoke (cancel) this Agreement within seven (7) calendar days after the date he signs it by written notification to ARK, 85 Fifth
Avenue, 14th Floor, New York, New York 10003-3019; Att:. Michael Weinstein. Such notification must be received by Michael
Weinstein no later than the seventh day after the date of execution. Oral notification will not act to revoke this Agreement;








(viii)        
enters into this Agreement knowingly and voluntarily.


Towers further represents
and warrants to ARK that he has at all times during the course of his employment by ARK (including its subsidiaries and affiliates),
performed his duties in accordance with his fiduciary and other duties to ARK and its shareholders, and in accordance with applicable
laws, rules and regulations.


 


14.             
Property of ARK. No later than January 2012, Towers shall vacate his office and handover
to ARK all passkeys, credit cards and all other ARK property in his possession, including but not limited to, documents, files,
computer equipment and software, if any, and all recorded information pertaining to ARK’s business. 


 


15.             
Specific Performance. Towers acknowledges that his breach or threatened violation of
any of the covenants contained in this Agreement, specifically including Sections 7, 8, 10, 11, or 14 hereof, may cause irreparable
damage to ARK, for which remedies at law would be inadequate. Towers further acknowledges that all such covenants are essential
terms and conditions of this Agreement. Towers therefore agrees that ARK shall be entitled, without the necessity of posting bond,
to a decree or order by any court of competent jurisdiction enjoining such threatened or actual violation of any of such covenants.
Such decree or order, to the extent appropriate, shall specifically enforce the full performance of any such covenant by Towers
and Towers hereby consents to the jurisdiction of any such court of competent jurisdiction. This remedy shall be in addition to
all other remedies available to the other parties to this Agreement at law or equity. If any portion of any such covenant shall
be adjudicated to be invalid or unenforceable, this Agreement shall be deemed amended to modify to the extent practicable, or delete
therefrom the portion so adjudicated, such deletion to apply only with respect to the operation of such covenant in the jurisdiction
in which such adjudication is made. 


 


16.             
Miscellaneous


 


(a)                           
This Agreement shall inure to the benefit of and be binding upon ARK and its subsidiaries
or affiliates, successors and assigns, and upon Towers and his heirs, executors, administrators, legatees and legal representatives.


 


(b)                          
 Should any part of this Agreement, for any reason whatsoever, be declared invalid, illegal,
or incapable of being enforced in whole or in part, such decision shall not affect the validity of any remaining portion, which
remaining portion shall remain in fill force and effect as if this Agreement had been executed with the invalid portion thereof
eliminated, and it is hereby declared the intention of the parties hereto that they would have executed the remaining portion of
this Agreement without including therein any portion which may for any reason be declared invalid.


 


(c)                           
This Agreement shall be construed and enforced in accordance with the laws of the State of
New York applicable to agreements made and to be performed in such State without application of the principles of conflicts of
laws of such State. Each of the parties hereto hereby consents to the venue and jurisdiction of the courts of the State







of New
York for any action or proceeding relating to this Agreement, and hereby waives any objection based on the convenience of such
forum, or otherwise.

 

(d)                          
This Agreement and all rights hereunder are personal to Towers and shall not be assignable,
and any purported assignment in violation thereof shall be null and void. Any person, firm or corporation succeeding to the business
of ARK by merger, consolidation, purchase of assets or otherwise, shall assume by contract or operation of law the obligations
of ARK hereunder; provided, however, that ARK shall, notwithstanding such assumption and/or assignment, remain liable and responsible
for the fulfillment of the terms and conditions of the Agreement on the part of ARK.


 


(e)                           
This Agreement constitutes the entire agreement between the parties hereto with respect to
the terms and conditions of Towers’ engagement by ARK as distinguished from any other contractual arrangements between the
parties pertaining to or arising out of theft relationship, and this Agreement supersedes and renders null and void any and all
other prior oral or written agreements, understandings, or commitments pertaining to Towers’ engagement by ARK. This Agreement
may only be amended upon the written agreement of both parties hereto.


 


(f)                           
 Any notice, statement, report, request or demand required or permitted to be given by this
Agreement shall be in writing, and shall be sufficient if delivered in person or if addressed and sent by certified mail, return
receipt requested, postage prepaid, to the parties at the addresses set forth above, or at such other place that either party may
designate by notice in the foregoing manner to the other. If mailed as aforesaid, any such notice shall be deemed given three (3)
days after being so mailed.


 


(g)                          
The failure of either party to insist upon the strict performance of any of the terms, conditions
and provisions of this Agreement shall not be construed as a waiver or relinquishment of future compliance therewith, and said
terms, conditions and provisions shall remain in full force and effect. No waiver of any term or any condition of this Agreement
on the part of either party shall be effective for any purpose whatsoever unless such waiver is in writing and signed by such party.


 


(h)                          
In the event a lawsuit is instituted by any party concerning a dispute under this Agreement,
the prevailing party in such lawsuit shall be entitled to recover all reasonable attorneys’ fees, costs of suit and expenses
(including fees, costs of expert witnesses), in addition to whatever damages or other relief the injured party is otherwise entitled
to under law and in connection with such dispute.


 


(i)                            
The headings of the paragraphs herein are inserted for convenience and shall not affect any
interpretation of this Agreement.


 


(j)                            
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 counterparts have been signed by each of the parties and
delivered to the other party, it being understood that all parties need not sign the same counterpart.








IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day and year first written above.


 


 


 



	 	ARK RESTAURANTS CORP.
	 	 	 
	 	By:	/s/ Michael Weinstein
	 	 	Chief Executive Officer
 MICHAEL WEINSTEIN
	 	 	 
	 	 	 
	 	 	s/s Robert Towers
	 	 	ROBERT TOWERS