Exhibit 10.61


 


RESTRICTED STOCK AGREEMENT


 


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


 


R E C I T A L


 


The
Company wishes to grant to Recipient 472,727 shares of the Company’s $.001 par
value 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 as
follows:


 


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


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


 


(a)  “Adjusted
EBITDA” means the
Company’s consolidated earnings before
interest, taxes, depreciation, amortization, stock-based compensation, and
other non-cash operating income and expenses, as determined in accordance with
U.S. generally accepted accounting principles consistently applied (“GAAP”).


 


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


 


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


 


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


 

















 


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


 


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


 


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


 


(g)           “Vested Shares” means any portion or all of the
Restricted Stock subject to this Agreement that is and has become vested
pursuant to Section 2.


 


2.             Vesting of Restricted
Stock.


 


(a)           The shares of Restricted Stock shall become vested in the
following amounts, at the following times and upon the following conditions,
provided that the Recipient remains in continuous employment of the Company
through 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’s
achievement of one hundred percent (100%) of the KPI.  In the event the Recipient only achieves less
than one hundred percent of the KPI, a portion of the Restricted Stock shall
vest equal to the product arrived at by multiplying 472,727 by the percentage
of KPI that has actually been achieved.   
The vesting of the Restricted Stock or a portion thereof, if any, shall
occur on the Trading day immediately after the Committee has determined whether
hundred percent or any portion of the KPI has been achieved in accordance with
Sub-section (b) of this Section below.


 


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


 


2

















 


3.             Delivery of Restricted
Stock.


 


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


 


THE SHARES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO SUBSTANTIAL VESTING AND OTHER RESTRICTIONS AS
SET FORTH IN THE RESTRICTED STOCK AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL
HOLDER OF THE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL
OFFICE OF THE ISSUER.  SUCH RESTRICTIONS
ARE BINDING ON TRANSFEREES OF THESE SHARES, AND INCLUDE VESTING CONDITIONS
WHICH MAY RESULT IN THE COMPLETE FORFEITURE OF THE SHARES.


 


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


 


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


 


4.             Effect of
Termination of Employment or Other Relationship.  Notwithstanding any
provisions to the contrary contained in the Plan, in the event:


 


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


 


3

















 


Company
(but such non-satisfactory performance has not amounted to a Cause under the
Employment Agreement)(the “Non-Satisfactory
Performance”), then all Non-Vested Shares as of the date
of such termination shall become vested
immediately regardless of whether the KPI has been achieved or not; or


 


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


 


(c)           Recipient’s employment
with the Company terminates due to death, Disability or Non-Satisfactory
Performance or for any other reason not contemplated under sub-Section (a) or
(b) above, then any Non-Vested Shares as of the date of such
termination shall, become vested or forfeited as determined by the Committee in
its reasonable discretion.


 


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


 


5.             Rights with Respect
to Restricted Stock.


 


(a)           Except as otherwise provided in this Agreement, the
Recipient 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 of
shares of Common Stock of the Company, including without limitation (i) the
right 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) the
rights available to all holders of shares of Common Stock of the Company upon
any merger, consolidation, reorganization, liquidation or dissolution, stock
split-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 (including
without limitation conditions under which all such rights shall be
forfeited).   Any shares of Common Stock
issued to the Recipient as a dividend with respect to shares of Restricted
Stock shall have the same status and bear the same legend as the shares of
Restricted Stock and shall be held by the Company, if the shares of Restricted
Stock that such dividend is attributed to is being so held, unless otherwise
determined by the Committee.  In
addition, notwithstanding any provision to the contrary herein, any cash
dividends declared with respect to shares of Restricted Stock subject to this
Agreement shall be held in escrow by the Committee until such time as the
shares of Restricted Stock that such cash dividends are attributed to shall
become Vested Shares, and in the event that such shares of Restricted Stock are
subsequently forfeited, the cash dividends attributable to such portion shall
be forfeited as well.


 


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


 


4

















 


adjusted.  If
any such adjustment shall result in a fractional share, such fraction shall be
disregarded.


 


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


 


6.             Non-Transferability of
Non-Vested Shares.  Non-Vested
Shares shall not be pledged, hypothecated or otherwise encumbered or subject to
any lien, obligation or liability of Recipient to any party (other than the
Company), or assigned or transferred by Recipient otherwise than by will or the
laws of descent and distribution or to a beneficiary upon the death of
Recipient.  A beneficiary or other person
claiming any rights under this Agreement from or through Recipient shall be
subject to all of the terms and conditions of this Agreement, except as
otherwise determined by the Committee, and to any additional terms and
conditions deemed necessary or appropriate by the Committee.


 


7.             Tax Matters.  If
applicable, Recipient shall make arrangements satisfactory to the Company to
pay 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 tax
payments 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 to
Recipient any federal, state or local taxes of any kind required by law to be
withheld with respect to the Restricted Stock. 
Tax consequences on Recipient (including without limitation U.S. and
foreign federal, state, local and foreign income tax consequences) with respect
to the Restricted Stock (including without limitation the grant, vesting and/or
forfeiture thereof) are the sole responsibility of Recipient.  Recipient shall consult with his or her own
personal accountant(s) and/or tax advisor(s) regarding these matters
and Recipient’s filing, withholding and payment (or tax liability) obligations.


 


8.             Miscellaneous.


 


8.1          No Right to (Continued)
Employment or Service.  This
Agreement and the grant of Restricted Stock hereunder shall not confer, or be
construed to confer, upon Recipient any right to employment or service, or
continued employment or service, with the Company.


 


5

















 


8.2          No Limit on Other
Compensation Arrangements. 
Nothing contained in this Agreement shall preclude the Company from
adopting or continuing in effect other or additional compensation plans,
agreements or arrangements, and any such plans, agreements and arrangements may
be either generally applicable or applicable only in specific cases or to
specific persons.


 


8.3          No Trust or Fund Created.  Neither this Agreement nor the grant of
Restricted Stock hereunder shall create or be construed to create a trust or
separate fund of any kind or a fiduciary relationship between the Company and
Recipient or any other person.  To the
extent that Recipient or any other person acquires a right to receive payments
from the Company pursuant to this Agreement, such right shall be no greater
than the right of any unsecured general creditor of the Company.


 


8.4          Binding
Effect.  This Agreement shall
bind 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 acts
and execute and deliver any documents which may be necessary to carry out the
provisions of this Agreement.


 


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


 


8.7          Syntax.  Throughout this Agreement, whenever the
context so requires, the singular shall include the plural, and the masculine
gender shall include the feminine and neuter genders.  The headings and captions of the various
Sections hereof are for convenience only and they shall not limit, expand or
otherwise affect the construction or interpretation of this Agreement.


 


8.8          Choice of
Law.  The parties hereby agree
that this Agreement has been executed and delivered in the State of Nevada and
shall be construed, enforced and governed by the laws thereof.  This Agreement is in all respects intended by
each party hereto to be deemed and construed to have been jointly prepared by
the parties and the parties hereby expressly agree that any uncertainty or
ambiguity 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 or
unenforceable, such provision shall be severable from, and such invalidity or
unenforceability shall not be construed to have any effect on, the remaining
provisions of this Agreement.


 


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



 


6

















 


facsimile
number set forth on the signature pages attached hereto on a day that is
not a Business Day or later than 3:30 p.m. (Hong Kong time) on any
Business Day, (c) the 2nd Business Day following the date of mailing, if
sent by Hong Kong recognized overnight courier service, or (d) upon actual
receipt by the party to whom such notice is required to be given.  The address for such notices and
communications shall be as set forth on the signature pages attached
hereto.  All notices and demands to
Recipient 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 in
writing from time to time such other place or places that such notices and
demands may be given.


 


8.11        Entire
Agreement.  This Agreement
constitutes the entire agreement between the parties hereto pertaining to the
subject matter hereof, this Agreement supersedes all prior and contemporaneous
agreements and understandings of the parties, and there are no warranties,
representations or other agreements between the parties in connection with the
subject matter hereof except as set forth or referred to herein.  No supplement, modification or waiver or termination
of this Agreement shall be binding unless executed in writing by the party to
be bound thereby.  No waiver of any of
the provisions of this Agreement shall constitute a waiver of any other
provision hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.


 


8.12        Attorneys’
Fees.  In the event that any
party to this Agreement institutes any action or proceeding, including, but not
limited to, litigation or arbitration, to preserve, to protect or to enforce
any right or benefit created by or granted under this Agreement, the prevailing
party in each respective such action or proceeding shall be entitled, in
addition to any and all other relief granted by a court or other tribunal or
body, as may be appropriate, to an award in such action or proceeding of that
sum of money which represents the attorneys’ fees reasonably incurred by the
prevailing party therein in filing or otherwise instituting and in prosecuting
or otherwise pursuing or defending such action or proceeding, and,
additionally, the attorneys’ fees reasonably incurred by such prevailing party
in negotiating any and all matters underlying such action or proceeding and in
preparation for instituting or defending such action or proceeding.


 


8.13        Counterparts.  This
Agreement may be executed in two or more separate counterparts, each of which
shall be an original, and all of which together shall constitute one and the
same agreement.


 


7

















 


IN WITNESS WHEREOF, the parties have entered
into 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

  



 


8