**Exhibit 10.61**

 

**RESTRICTED STOCK AGREEMENT**

 

**THIS RESTRICTED STOCKAGREEMENT** (“***Agreement***”)is entered into on January 22, 2010 by and between Elixir GamingTechnologies, Inc., a Nevada corporation (the “***Company***”),and Clarence Chung, the Chief Executive Officer of the Company (the “***Recipient***”).

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**R E C I T A L**

 

TheCompany wishes to grant to Recipient 472,727 shares of the Company’s $.001 parvalue common stock (“***Common Stock***”)pursuant to the Company’s 2008 Stock Incentive Plan (“***Plan***”)and on the terms and subject to the conditions set forth below.

 

**A G R E E M E N T**

 

It is hereby agreed asfollows:

 

**1.**             **Grant of Restricted Stock;Definitions**.  The Companyhereby grants, as of January 22, 2010 (the “***Date of Grant***”), to Recipient, 472,727 shares ofrestricted Common Stock (collectively the “***Restricted Stock***”). The Restricted Stock shall be subject to the terms, conditions andrestrictions set forth in the Plan and this Agreement.  Except as otherwise determined by the boardof directors (“***Board***”) of the Company, thisAgreement and the Restricted Stock granted hereby shall be administered onbehalf of the Company by the Compensation Committee (“***Committee***”)of the Board. All agreements, notices and waivers to be made by, or deliveredto, the Company under this Agreement shall be made by, or delivered to, theCommittee, except as otherwise determined by the Board.

For purposes of thisAgreement, the following terms shall have the meanings indicated:

 

(a)  “***Adjusted******EBITDA***” means theCompany’s consolidated earnings beforeinterest, taxes, depreciation, amortization, stock-based compensation, andother non-cash operating income and expenses, as determined in accordance withU.S. generally accepted accounting principles consistently applied (“***GAAP***”).

 

(b)”***Employment Agreement***” meansthat certain Executive Employment Agreement dated November 10, 2009between the Company and Recipient.

 

(c)  “***Fiscal 2010***” means theCompany’s fiscal year ended December 31, 2010.

 

(d)    “***KPI***” meansthe Key Performance Index for the Chief Executive Officer for the Fiscal 2010as determined by the Committee during a Committee meeting held on December 16,2009 (subject to any review or modifications thereto as may be deemed necessaryby the Committee from time to time). The KPI is essentially a benchmark formeasuring the performance of the Chief Executive Officer for the Fiscal 2010and it covers three financial (including cost control at certain prescribedlevel and achievements of average daily net wins per machine and AdjustedEBITDA at certain prescribed levels) and two non-financial aspects 

 

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(including the successful deployment ofcertain number of machines at the end of Fiscal 2010 and maintenance of certainlevel of the Company’s cash and cash equivalents (as determined in accordance withGAAP) for meeting operating cash outflow). Each of the aforesaid five elementsof the KPI carries different weights (in terms of percentage of achievement)assigned thereto. Subject to the determination by the Committee in accordancewith Section 2 below, the degree of achievement (in terms of percentage)of the KPI shall be ascertained by summing up all different weights ofthresholds of the five elements that have actually been achieved.

 

(e)  “***Non-Vested Shares***” means any portion or all of the RestrictedStock subject to this Agreement that has not become vested pursuant to Section 2.

 

(f)          “***Trading Day***” means the day on whichthe securities of the Company are quoted or traded on the NYSE-Amex and/or, ifapplicable, such other stock exchange where the Company is listed.

 

(g)           “***Vested Shares***” means any portion or all of theRestricted Stock subject to this Agreement that is and has become vestedpursuant to Section 2.

 

**2.**             **Vesting of RestrictedStock**.

 

(a)           The shares of Restricted Stock shall become vested in thefollowing amounts, at the following times and upon the following conditions,provided that the Recipient remains in continuous employment of the Companythrough and on the applicable vesting date (except as otherwise provided in Section 4):

 

(i) all the Restricted Stock shall vest , subject to and upon the Recipient’sachievement of one hundred percent (100%) of the KPI.  In the event the Recipient only achieves lessthan one hundred percent of the KPI, a portion of the Restricted Stock shallvest equal to the product arrived at by multiplying 472,727 by the percentageof KPI that has actually been achieved.   The vesting of the Restricted Stock or a portion thereof, if any, shalloccur on the Trading day immediately after the Committee has determined whetherhundred percent or any portion of the KPI has been achieved in accordance withSub-section (b) of this Section below.

 

(b)           The determination of the Company’s satisfaction of thevesting conditions set forth in Section 2(a) shall be made by theCommittee in its reasonable discretion provided that the final determination ofwhich shall not be made later than April 30, 2011.  The Committee shall be entitled to rely ondisclosures made in the Company’s annual report on Form 10-K for thefiscal year ended December 31, 2010 filed with the Securities and ExchangeCommission for purposes of confirming the satisfaction the vesting conditionsset forth in Section 2(a).  TheRestricted Stock also shall become vested at such earlier times, if any, asshall be provided in this Agreement or as shall otherwise be determined by theCommittee in its sole and absolute discretion.

 

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**3.**             **Delivery of RestrictedStock**.

 

(a)           One or more stock certificates evidencing the RestrictedStock shall be issued in the name of the Recipient but shall be held andretained by the Secretary of the Company until the date (the “***Applicable Date***”) on whichthe shares (or a portion thereof) subject to this Restricted Stock award becomeVested Shares pursuant to Section 2 hereof, subject to the provisions of Section 4hereof.  All such stock certificatesshall bear the following legends, along with such other legends that theCommittee shall deem necessary and appropriate or which are otherwise requiredor indicated pursuant to any applicable stockholders agreement:

 

THE SHARES REPRESENTED BYTHIS CERTIFICATE ARE SUBJECT TO SUBSTANTIAL VESTING AND OTHER RESTRICTIONS ASSET FORTH IN THE RESTRICTED STOCK AGREEMENT BETWEEN THE ISSUER AND THE ORIGINALHOLDER OF THE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPALOFFICE OF THE ISSUER.  SUCH RESTRICTIONSARE BINDING ON TRANSFEREES OF THESE SHARES, AND INCLUDE VESTING CONDITIONSWHICH MAY RESULT IN THE COMPLETE FORFEITURE OF THE SHARES.

 

(b)           Recipient shall deposit with the Company stock powers orother instruments of transfer or assignment, duly endorsed in blank withsignature(s) guaranteed, corresponding to each certificate representingshares of Restricted Stock until such shares become Vested Shares.  If Recipient shall fail to provide theCompany with any such stock power or other instrument of transfer orassignment, Recipient hereby irrevocably appoints the Secretary of the Companyas his attorney-in-fact, with full power of appointment and substitution, toexecute and deliver any such power or other instrument which may be necessaryto effectuate the transfer of the Restricted Stock (or assignment ofdistributions thereon) on the books and records of the Company.

 

(c)           On or after the Applicable Date, upon written request tothe Company by Recipient, the Company shall promptly cause a new certificate orcertificates to be issued for and with respect to all shares that become VestedShares on the Applicable Date, which certificate(s) shall be delivered toRecipient as soon as administratively practicable after the date of receipt bythe Company of Recipient’s written request. The new certificate or certificates shall not bear the legend set forthin Section 3(a) but shall continue to bear those other legends andendorsements that the Company shall deem necessary or appropriate (includingthose relating to restrictions on transferability and/or obligations andrestrictions under the Securities Act of 1933, as amended).

 

**4.**             **Effect ofTermination of Employment or Other Relationship**.  Notwithstanding anyprovisions to the contrary contained in the Plan, in the event:

 

(a)           Recipient’s employment with theCompany terminates based on termination by the Company without Cause (as suchterm is defined in Section 1(b) of the Employment Agreement) otherthan due to death, Disability (as such term is defined in the Plan) or theunanimous decision of the Board members (other than the Recipient) that theRecipient has not satisfactorily performed or discharged his duties as thechief executive officer of the

 

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Company(but such non-satisfactory performance has not amounted to a Cause under theEmployment Agreement)(the “**Non-SatisfactoryPerformance**”), then all Non-Vested Shares as of the dateof such termination shall become vestedimmediately regardless of whether the KPI has been achieved or not; or

 

(b)           Recipient’s employmentwith the Company terminates based on termination by the Company with Cause, thenall Non-Vested Shares as of the date of such termination shall become forfeited immediately; or

 

(c)           Recipient’s employmentwith the Company terminates due to death, Disability or Non-SatisfactoryPerformance or for any other reason not contemplated under sub-Section (a) or(b) above, then any Non-Vested Shares as of the date of suchtermination shall, become vested or forfeited as determined by the Committee inits reasonable discretion.

 

The Committee shall have thepower and authority to enforce on behalf of the Company any rights of theCompany under this Agreement in the event of Recipient’s forfeiture ofNon-Vested Shares pursuant to this Section 4.

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**5.             Rights with Respectto Restricted Stock.**

 

(a)           Except as otherwise provided in this Agreement, theRecipient shall have, with respect to all of the shares of Restricted Stock,whether Vested Shares or Non-Vested Shares, all of the rights of a holder ofshares of Common Stock of the Company, including without limitation (i) theright to vote such Restricted Stock, (ii) the right to receive dividends,if any, as may be declared on the Restricted Stock from time to time, and (iii) therights available to all holders of shares of Common Stock of the Company uponany merger, consolidation, reorganization, liquidation or dissolution, stocksplit-up, stock dividend or recapitalization undertaken by the Company; provided,however, that all of such rights shall be subject to the terms,provisions, conditions and restrictions set forth in this Agreement (includingwithout limitation conditions under which all such rights shall beforfeited).   Any shares of Common Stockissued to the Recipient as a dividend with respect to shares of RestrictedStock shall have the same status and bear the same legend as the shares ofRestricted Stock and shall be held by the Company, if the shares of RestrictedStock that such dividend is attributed to is being so held, unless otherwisedetermined by the Committee.  Inaddition, notwithstanding any provision to the contrary herein, any cashdividends declared with respect to shares of Restricted Stock subject to thisAgreement shall be held in escrow by the Committee until such time as theshares of Restricted Stock that such cash dividends are attributed to shallbecome Vested Shares, and in the event that such shares of Restricted Stock aresubsequently forfeited, the cash dividends attributable to such portion shallbe forfeited as well.

 

(b)           If at any time while this Agreement is in effect (orshares of Restricted Stock granted hereunder shall be or remain unvested andoutstanding), there shall be any increase or decrease in the number of issuedand outstanding shares of Common Stock of the Company through the declarationof a stock dividend or any stock split-up, combination or exchange of suchshares of Common Stock, then and in that event, in view of such change, thenumber of shares of Restricted Stock then subject to this Agreement shall beappropriately 

 

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adjusted.  Ifany such adjustment shall result in a fractional share, such fraction shall bedisregarded.

 

(c)           Notwithstanding any term or provision of this Agreement tothe contrary, the existence of this Agreement, or of any outstanding RestrictedStock awarded hereunder, shall not affect in any manner the right, power orauthority of the Company to make, authorize or consummate: (i) any or alladjustments, recapitalizations, reorganizations or other changes in the Company’scapital structure or its business; (ii) any merger, consolidation orsimilar transaction by or of the Company; (iii) any offer, issue or saleby the Company of any capital stock of the Company, including any equity ordebt securities, or preferred or preference stock that would rank prior to oron parity with the Restricted Stock and/or that would include, have or possessother rights, benefits and/or preferences superior to those that the RestrictedStock includes, has or possesses, or any warrants, options or rights withrespect to any of the foregoing; (iv) the dissolution or liquidation ofthe Company; (v) any sale, transfer or assignment of all or any part ofthe stock, assets or business of the Company; or (vi) any other corporatetransaction, act or proceeding (whether of a similar character or otherwise).

 

**6.**             **Non-Transferability ofNon-Vested Shares**.  Non-VestedShares shall not be pledged, hypothecated or otherwise encumbered or subject toany lien, obligation or liability of Recipient to any party (other than theCompany), or assigned or transferred by Recipient otherwise than by will or thelaws of descent and distribution or to a beneficiary upon the death ofRecipient.  A beneficiary or other personclaiming any rights under this Agreement from or through Recipient shall besubject to all of the terms and conditions of this Agreement, except asotherwise determined by the Committee, and to any additional terms andconditions deemed necessary or appropriate by the Committee.

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**7.             Tax Matters. **Ifapplicable, Recipient shall make arrangements satisfactory to the Company topay to the Company any federal, state or local income taxes (U.S. or foreign)required to be withheld with respect to the Restricted Stock.  If Recipient shall fail to make such taxpayments as are required, the Company shall, to the extent permitted by law,have the right to deduct from any payment of any kind otherwise due toRecipient any federal, state or local taxes of any kind required by law to bewithheld with respect to the Restricted Stock. Tax consequences on Recipient (including without limitation U.S. andforeign federal, state, local and foreign income tax consequences) with respectto the Restricted Stock (including without limitation the grant, vesting and/orforfeiture thereof) are the sole responsibility of Recipient.  Recipient shall consult with his or her ownpersonal accountant(s) and/or tax advisor(s) regarding these mattersand Recipient’s filing, withholding and payment (or tax liability) obligations.

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**8.             Miscellaneous.**

 

**8.1**          **No Right to (Continued)Employment or Service**.  ThisAgreement and the grant of Restricted Stock hereunder shall not confer, or beconstrued to confer, upon Recipient any right to employment or service, orcontinued employment or service, with the Company.

 

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**8.2**          **No Limit on OtherCompensation Arrangements**. Nothing contained in this Agreement shall preclude the Company fromadopting or continuing in effect other or additional compensation plans,agreements or arrangements, and any such plans, agreements and arrangements maybe either generally applicable or applicable only in specific cases or tospecific persons.

 

**8.3**          **No Trust or Fund Created**.  Neither this Agreement nor the grant ofRestricted Stock hereunder shall create or be construed to create a trust orseparate fund of any kind or a fiduciary relationship between the Company andRecipient or any other person.  To theextent that Recipient or any other person acquires a right to receive paymentsfrom the Company pursuant to this Agreement, such right shall be no greaterthan the right of any unsecured general creditor of the Company.

 

**8.4**          **BindingEffect**.  This Agreement shallbind and inure to the benefit of the successors, assigns, transferees, agents,personal representatives, heirs and legatees of the respective parties.

 

**8.5**          **Further Acts**.  Each party agrees to perform any further actsand execute and deliver any documents which may be necessary to carry out theprovisions of this Agreement.

 

**8.6**          **Amendment**.  This Agreement may be amended at any time bythe written agreement of the Company and Recipient.

 

**8.7**          **Syntax**.  Throughout this Agreement, whenever thecontext so requires, the singular shall include the plural, and the masculinegender shall include the feminine and neuter genders.  The headings and captions of the variousSections hereof are for convenience only and they shall not limit, expand orotherwise affect the construction or interpretation of this Agreement.

 

**8.8**          **Choice ofLaw**.  The parties hereby agreethat this Agreement has been executed and delivered in the State of Nevada andshall be construed, enforced and governed by the laws thereof.  This Agreement is in all respects intended byeach party hereto to be deemed and construed to have been jointly prepared bythe parties and the parties hereby expressly agree that any uncertainty orambiguity existing herein shall not be interpreted against either of them.

 

**8.9**          **Severability**.In the event that any provision of this Agreement shall be held invalid orunenforceable, such provision shall be severable from, and such invalidity orunenforceability shall not be construed to have any effect on, the remainingprovisions of this Agreement.

 

**8.10**        **Notices**.  Any and all notices or other communicationsor deliveries required or permitted to be provided hereunder shall be inwriting and shall be deemed given and effective on the earliest of (a) thedate of transmission, if such notice or communication is delivered viafacsimile at the facsimile number set forth on the signature pages attachedhereto prior to 3:30 p.m. (Hong Kong time) on  any day except Saturday, Sunday and any daywhich shall be a national legal holiday in Hong Kong (“***BusinessDay***”), (b) the next Business Day after the date oftransmission, if such notice or communication is delivered via facsimile at the

 

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facsimilenumber set forth on the signature pages attached hereto on a day that isnot a Business Day or later than 3:30 p.m. (Hong Kong time) on anyBusiness Day, (c) the 2nd Business Day following the date of mailing, ifsent by Hong Kong recognized overnight courier service, or (d) upon actualreceipt by the party to whom such notice is required to be given.  The address for such notices andcommunications shall be as set forth on the signature pages attachedhereto.  All notices and demands toRecipient or the Company may be given to them at the following addresses:

 

| If  to Recipient: |   | Clarence Chung                         |
|-------------------|--------|----------------------------------------|
|              |   | Unit  3705, The Centrium               |
|              |   | 60  Wyndham Street                     |
|              |   | Central,  Hong Kong SAR                |
|              |   |                                   |
|              |   |                                   |
| If  to Company:   |   | Elixir Gaming  Technologies, Inc. |
|              |   | Unit  3705, The Centrium               |
|              |   | 60  Wyndham Street                     |
|              |   | Central,  Hong Kong SAR                |

 

Such parties may designate inwriting from time to time such other place or places that such notices anddemands may be given.

 

**8.11**        **EntireAgreement**.  This Agreementconstitutes the entire agreement between the parties hereto pertaining to thesubject matter hereof, this Agreement supersedes all prior and contemporaneousagreements and understandings of the parties, and there are no warranties,representations or other agreements between the parties in connection with thesubject matter hereof except as set forth or referred to herein.  No supplement, modification or waiver or terminationof this Agreement shall be binding unless executed in writing by the party tobe bound thereby.  No waiver of any ofthe provisions of this Agreement shall constitute a waiver of any otherprovision hereof (whether or not similar) nor shall such waiver constitute acontinuing waiver.

 

**8.12**        **Attorneys’Fees**.  In the event that anyparty to this Agreement institutes any action or proceeding, including, but notlimited to, litigation or arbitration, to preserve, to protect or to enforceany right or benefit created by or granted under this Agreement, the prevailingparty in each respective such action or proceeding shall be entitled, inaddition to any and all other relief granted by a court or other tribunal orbody, as may be appropriate, to an award in such action or proceeding of thatsum of money which represents the attorneys’ fees reasonably incurred by theprevailing party therein in filing or otherwise instituting and in prosecutingor otherwise pursuing or defending such action or proceeding, and,additionally, the attorneys’ fees reasonably incurred by such prevailing partyin negotiating any and all matters underlying such action or proceeding and inpreparation for instituting or defending such action or proceeding.

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**8.13        Counterparts. **ThisAgreement may be executed in two or more separate counterparts, each of whichshall be an original, and all of which together shall constitute one and thesame agreement.

 

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IN WITNESS WHEREOF, the parties have enteredinto this Agreement as of the date first written above.

 

 
|       | “**Company**”                     |
|------------|---------------------------------------------|
|       |                                        |
| ** ** | **Elixir Gaming  Technologies, Inc.,** |
|       | a  Nevada corporation                       |
|       |                                        |
|       | By:                                         | /s/ Anthony Tyen |
|       |                                        | Anthony  Tyen |
|       |                                        |
|       | “**Recipient**”                   |
|       |                                        |
|       |                                        | /s/ Clarence  Chung |
|       |                                        | Clarence  Chung |

 

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