Amended and Restated Exclusive Purchase Right Agreement



 Exhibit 10.23 
  
 Amended and Restated Exclusive Purchase Right Agreement 
  

			
	eLong.Inc (hereinafter “Party A”)
	Registered Address:	  	4th Floor, Hutchence David Century Garden, George Town, Grand Cayman, Cayman
Islands.
	Tang Yue (hereinafter “Party B”)
	Registered Address:	  	23A, No.1 Building, Yujingyuan, 5 East Road of the Capital Library, Chaoyang District, Beijing.
	Identity No.:	  	320106197103121236
	
	Beijing Asia Media Interactive Advertising Co., Ltd. (hereinafter “Party C”)
	Registered Address:	  	203, B Xing Ke Mansion, 10 Jiuxianqiao Road, Chaoyang District, Beijing.
	Legal representative:	  	Tang Yue
	
	eLongNet Information Technology (Beijing) Co., Ltd. (hereinafter “Party D”)
	Registered Address:	  	10 Jiuxianqiao Road, Chaoyang District, Beijing.
	Legal Representative:	  	Tang Yue

  
 WHEREAS: 
  
 1.    Party A is a company registered and established in Cayman
Islands; Party B is a PRC resident; Party C is a limited liability company established and validly existing in accordance with PRC laws, and of which 75% equity interest is held by Party B; Party D is a wholly foreign owned enterprise established
and validly existing in accordance with PRC laws, and is a wholly owned company of Party A. 
  
 2.    “Agreement” was entered into by and between Party B and Party D dated as of August 22nd 2003, and according to which Party D provided to Party B funds for Party B to invest in Party C; “Subscribing Agreement” (hereinafter “the Original Subscribing Agreement”) was entered into by and between Party B
and Party D dated as of August 23, 2003, and according to which Party B offered Party D the right to exclusively purchase Party C’s
equity interest held by Party B at a price of RMB350,000, and Party D paid RMB1 to Party A as a consideration. 
  
 3.    “Loan Agreement” (hereinafter “Loan Agreement”) was entered into by and between Party A and Party B dated as of March
5, 2004, and according to which Party A provided a loan to Party B to refund to Party D for the funds and investment made by Party D.

  
 4.    Party B is willing to grant to Party A the
subscribing right of Party C’s equity interest held by Party B, and in the meantime, Party D and Party B agree to unconditionally terminate the terms and conditions under the Original Subscribing Agreement in order for Party A to enjoy the
subscribing right of the equity interest held by Party B under the terms and conditions hereof. The parties agree to sign this agreement on March 5, 2004 and make it substitute the Original Subscribing Agreement. 
  
 5.    The parties agree to conduct the following amendment and restatement on the agreement 
  

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 NOW, THEREFORE, the parties to this agreement hereby agree on July 20, 2004 as follows: 
  
 Chapter One.    Purchases and Sale of Equity Interest

  
 1.1    Authorizations 
  
 Party B hereby irrevocably delivers to Party A, under the laws of the PRC, an
irrevocable sole authority (“Purchase Right of Equity Interest”) of, following the steps decided by Party A, and the price specified in 1.3 of this agreement, purchasing by Party A or by one or more persons designated by Party A (the
“Designated Persons”) at any time from Party B of its all or part of the equity interest of Party C. Besides Party A and the Designated Persons, any third party does not have such Purchase Right of Equity Interest. Party C hereby agrees
the delivery of Purchase Right of Equity Interest from Party B to Party A. As specified in this and this agreement, the “person” has the meaning of a person, corporation, joint venture, partnership, enterprise, trust or non-corporation
organization. 
  
 1.2    Steps 
  
 Upon and subject to the laws and regulations of PRC, Party A may send a written notice
(the “Notice of Purchase of Equity Interest”) to Party B upon its performance of purchase to explain in detail the way of purchase. 
  
 1.3    Purchase Price 
  
 Except as requested by law to evaluate, the price of the Purchased Equity Interest (“Purchase Price”) shall be an equivalent of the actual amount of the
Purchased Equity Interest contributed by Party B. 
  
 1.4    Transfer of the Purchased Equity Interest 
  
 Every time upon Party A’s performance of the Purchase Right of Equity Interest: 
  
 (a)    Party B shall supervise and urge Party C to convene the shareholders meeting, and during the meeting, to pass the
decision or resolution to transfer the equity interest from Party B to Party A and/or the Designated Persons; 
  
 (b)    Party B shall, upon the terms and conditions of this agreement and the Notice of Purchase of Equity Interest, enter into
Equity Interest Transfer Agreement with Party A (or, in applicable situation, the Designated Persons); and 
  
 (c)    The related parties shall execute all other requisite contracts, agreements or documents, acquire all requisite approval
and consent of the government, and, without any security interest, perform all requisite action to transfer the valid ownership of the Purchased Equity Interest to Party A and/or the Designated Person, and to cause Party A and/or the Designated
Person to be the registered owner of the Purchased Equity Interest. For this and this agreement, “Security Interest” has the meaning of security, mortgage, right or interest of the third party, any purchase right of equity interest, right
of acquisition, prior purchase right, right of set-off, ownership detainment or other security arrangements. To further define the meaning, it does not include any security interest subject to this Agreement or the equity interest pledge contract of
Party B. As described in this and this agreement, “the Equity Interest Pledge Agreement of Party B” has the meaning of the Equity Interest Pledge Agreement entered into by Party D and Party B dated as of the execution date of this
Agreement. According to the said agreement, to secure Party C to perform the obligations subject to the Exclusive Technology Service Agreement entered into between Party C and Party D, Party B pledges all its equity interest in Party C to Party D.

  

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 1.5    Payment 
  
 Whereas contemplated in the Loan Agreement, any proceeds gained by Party B from the transfer of its equity interest in Party C shall
be used, according to the Loan Agreement, as the payment to its loan borrowed from Party A. Therefore, except otherwise other arrangement shall be applied according to the applicable law, upon the performance of the Purchase Right of Equity Interest
by Party A, the Purchase Price shall be used as the payment for the principal as well as the interests from Party B to Party A subject to the loan. Party A does not need pay the Purchase Price to Party B anymore. 
  
 Chapter Two.    Promises Relating Equity
Interest 
  
 2.1    Promises Relating Party C 
  
 Party B and Party C hereby promise: 
  
 (a)    Without prior written consent by Party A, not, in any form, to complement, change or renew the articles of the association of Party C, to increase or decrease registered capital of the corporation, or to change
the structure of the registered capital in any other forms; 
  
 (b)    Following kind finance and business standard and tradition, to maintain the exist of the corporation, prudently and effectively operate business and process affairs; 
  
 (c)    Without prior written consent by Party A,
not, dated from the execution date of this agreement, to sale, transfer, mortgage or dispose in any other form any assets, legitimate or beneficial interest of business or income of Party C, or to approve any other security interest set on it;

  
 (d)    Without prior written notice
by Party A, no debt shall take place, be inherited, be guaranteed, or be allowed to exist, with the exception of: (i) debt from normal or daily business but not from borrowing; and (ii) debt having been disclosed to Party A or having gained written
consent from Party A; 
  
 (e)    To
normally operate all business to maintain the asset value of Party C, without doing or otherwise any action that sufficiently affects the operation and asset value; 
  
 (f)    Without prior written consent by Party A, not to enter into any material contract, with the
exception of the contract entered into during the normal business ( as in this paragraph, a contract with a value more than a hundred thousand Yuan (RMB100,000) shall be deemed as a material contract); 
  
 (g)    Without prior written consent by Party A,
not to provide loan or credit loan to anyone; 
  
 (h)    Upon the request of Party A, to provide all operation and finance materials relevant to Party C; 
  
 (i)    Without prior written consent by Party A, Party C shall not to merger or associate with any person, or purchase any
Person or invest in any Person; 
  
 (j)    To notify Party A immediately the occurrence or the probable occurrence of the litigation, arbitration or administrative procedure related to the assets, business and income of Party C; 
  
 (k)    In order to keep the ownership of Party C
to all its assets, to execute all requisite or appropriate documents, do all requisite or appropriate action, and advance all requisite or appropriate accusation, or make requisite or appropriate plea for all claims; 
  
 (l)    Without prior written notice by Party A,
not to assign stock interests to shareholders in any form, but upon the request of Party A, to assign all its assignable profits to their own shareholders; 
  

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 2.2    Promises Relating Party B 
  
 Party B promises: 
  
 (a)    Without prior written consent by Party A,
dated from the execution date of this agreement, not to sale, transfer, mortgage or dispose in any other form any legitimate or beneficial interest of equity interest, or to approve any other security interest set on it, with the exception of the
pledge set on the equity interest of Party B subject to Equity Interest Pledge Agreement of Party B; 
  
 (b)    Without prior written notice by Party A, not to cause the Board of Shareholders commissioned by Party C not to approve or
execute any approving document to, sale, transfer, mortgage or dispose in any other form any legitimate or beneficial interest of equity interest, or to approve any other security interest set on it, with the exception of such actions made to Party
A or the designated person of Party A; 
  
 (c)    To cause the Board of Shareholders commissioned by it not to approve or execute any approving document for Party C to, with no prior written notice by Party A, merger or associate with any person, or purchase any
person or invest in any person; 
  
 (d)    To notify Party A the occurrence or the probable occurrence of the litigation, arbitration or administrative procedure related to the equity interest owned by it; 
  
 (e)    To cause the Board of Shareholders
commissioned by it to vote to approve the transfer of the Purchased Equity Interest subject to this agreement; 
  
 (f)    In order to keep its ownership of the equity interest, to execute all requisite or appropriate documents, do all
requisite or appropriate action, and advance all requisite or appropriate accusation, or make requisite or appropriate plea for all claims; 
  
 (g)    Upon the request of Party A, to commission any person designated Party D to be the member of the board of directors of
Party C; 
  
 (h)    Upon the request of
Party A at any time, to immediately transfer its equity interest to the representatives designated by Party A unconditionally and at any time, and abandon its prior purchase right of such equity interest transferring to another available
shareholder; 
  
 (i)    To prudently
comply with the terms and conditions of this agreement and other agreements entered into totally or respectively by Party B, Party C and Party A, to actually perform all obligations under these agreements, without doing or otherwise any action that
sufficiently affects the validity and enforceability of these agreements; 
  
 2.3    Promises Relating Party D 
  
 Considering Party B has impawned the stockholder’s right of Party C, hold by Party B, to Party D. Party D agrees that in case Party A exercises the right of purchasing stockholder’s right during the validity period of Equity
Interest Pledge Agreement, Party B shall transfer the stockholder’s right to Party A or other appointed personnel in accordance with the agreement, the aforesaid transformation shall not be bound by the regulation that the transformation of
Party B’s stockholder’s right shall be limited, in the Equity Interest Pledge Agreement. 
  
 3.    Representations and Warranties 
  
 Representations and Warranties of Party B and Party C 
  
 Dated as of the execution date of this agreement and every transferring date, Party B and Party C hereby represents and warrants
together and respectively to Party A as follows: 
  
 (a)    It has the power and ability to enter into and deliver this agreement, and any equity interest-transferring agreement (“Transferring Agreement”, respectively) having it as a party, for every single
transfer of the purchased equity interest according to this 

  

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agreement, and to perform its obligations under this Agreement and any Transferring Agreement. upon execution, this agreement and the Transferring Agreement having it
as a party constitute a legal, valid and binding obligation of it enforceable against it in accordance with its terms; 
  
 (b)    The execution, delivery of this agreement and any Transferring Agreement and performance of the obligations under this
agreement and any Transferring Agreement do not: (i) cause to violate any relevant laws of PRC; (ii) constitute a conflict with its articles of association or other organizational documents; (iii) cause to breach any contract or instruments to which
it is a party or having binding obligation on it, or cause to breach any contract or instruments to which it is a party or having binding obligation on it; (iv) cause to violate relevant authorization of any consent or approval to it and/or any
continuing valid condition; or (v) cause any consent or approval authorized to it to be suspended, removed, or into which other requests be added; 
  
 (c)    Party C bears the kind and sellable ownership of all assets. Party C does not set any security interest on the said
assets; 
  
 (d)    Party C does not
have any undischarged debt, with the exception of (i) debt from its normal business; and (ii) debt having been disclosed to Party A and having gained written consent from Party A; 
  
 (e)    Party C abides by all laws and regulations applicable to the purchase of assets;

  
 (f)    No litigation, arbitration
or administrative procedure relating to equity interest, assets of Party C or the corporation is underway or to be decided or to probably take place; and 
  
 (g)    It bears the kind and sellable ownership of its equity interest; it does not set any security interest on the said
assets. 
  
 4.    Effective Date 
  
 This Agreement shall be effectively dated from the execution date, and come into
effect from January 1, 2004 as the parties confirmed, with the term of effect as 20 years. Since the effective date, the Original Subscribing Agreement between Party B and Party D shall terminate, the rights and obligations under the Original
Subscribing Agreement shall be released and in the meantime, neither party shall be responsible for the termination of the Original Subscribing Agreement. 
  
 5.    Applicable Law and Dispute Resolution 
  
 5.1    Applicable Law 
  
 The execution, validity, construing and performance of this agreement, and resolution of the disputes under this agreement, shall be in accordance
with officially published and publicly attainable laws of PRC (“PRC laws”). Issues not regulated by the PRC laws shall apply international legal rules and conventions. 
  
 5.2    Dispute Resolution 
  
 (a)    Any dispute, tangle or claim arising from the agreement or relating with the agreement
(including any issue relating with the existence, validity or termination of the agreement) should be submitted to China International Economic and Trade Arbitration Commission (the “Arbitration Commission”). Arbitration Commission shall
conduct arbitration in accordance with the current effective rules of arbitration application. The arbitration award shall be final and binding upon both parties. 
  
 (b)    Arbitration place shall be in Beijing, PRC. 
  

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 (c)    Arbitration language shall be English. 
  
 (d)    The court of arbitration shall compose of
three arbitrators. Both parties should respectively appoint a arbitrator, the chairman of the court of arbitration shall be appointed by both parties through consultation. In case both parties do not coincide in opinion of the person selected for
the chief arbitrator within twenty days from the date of their respectively appoint a arbitrator, the director of Arbitration Commission shall have right to appoint the chief arbitrator. The chief arbitrator shall not be Chinese citizen or United
State citizen. 
  
 (e)    Both parties
agreed that the court of arbitration established according to the regulation shall have right to provide actually performed relief on the proper situation according with PRC Law (including but not being limited to Law of Contract of the
People’s Republic of China). For the avoidance of doubt, both parties further that any court having jurisdiction (including PRC Court) shall carry out the arbitral award of actual performance issued by the court of arbitration. 
  
 (f)    Both parties agreed to conduct arbitration
in accordance with this regulation, and irrepealably abstain the right to appeal, reexamine or prosecute to national court or other administration of justice in any form, and the precondition shall be that the aforesaid waiver is effective. However
the waiver of both parties does not include any post-arbitration injunction, post-arbitration distress warrant or other command issued by any court having jurisdiction (including PRC Court) for terminating the arbitration procedure or carrying out
any arbitral award. 
  
 6.    Taxes and Expenses

  
 Every party shall, according to laws of PRC, bear any and all
transferring and registering taxes, costs and expenses for the preparation and execution of this Agreement and all Transferring Agreements, and those arising from or imposed on the party, to complete the transactions of this Agreement and all
Transferring Agreements. 
  
 7.    Notices

  
 This agreement requests that notices or other communications sent by
any party or corporation shall be written in Chinese, and be delivered in person, by mail or telecopy to other parties at the following addresses or other specified addresses noticed by other parties to the party. The date deemed to be duly given or
made shall be confirmed as follows: (a) for notices delivered in person, the date of delivery shall be deemed as having been duly given or made; (b) for notices delivered by mail, the tenth day of the delivery date of air certified mail with postage
prepaid (as shown on stamp) or the fourth day of the delivery date to an internationally certified delivery institution shall be deemed as having been duly given or made; and (c) for notices by telecopy, the receipt date showed on the delivery
confirming paper of the relevant document shall be deemed as having been duly given or made. 
  

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	Party A:	  	eLong.Inc
	Address:	  	4th Floor, Hutchence David Century Garden, George Town, Grand Cayman, Cayman
Islands.
		
	Party B:	  	Tang Yue
	Address:	  	23A, No.1 Building, Yu Jing Yuan, 5 East Road of the Capital Library, Chaoyang District, Beijing.
	Fax:	  	64312801
	Tel:	  	58602288
		
	Party C:	  	Beijing Asia Media Interactive Advertising Co., Ltd.
	Address:	  	203, B Xing Ke Mansion, 10 Jiu Xian Qiao Road, Chaoyang District, Beijing.
	Fax:	  	64312801
	Tel:	  	58602288
	Addressee:	  	Tang Yue
		
	Party D:	  	eLongNet Information Technology (Beijing) Co., Ltd.
	Address:	  	10 Jiu Xian Qiao Road, Chaoyang District, Beijing
	Fax:	  	64312801
	Tel:	  	58602288
	Addressee:	  	Tang Yue

  
 8.    Confidentiality 
  
 Both the
parties admit and confirm any oral or written materials exchanged by the parties relating to this agreement are confidential. Both parties shall maintain the secrecy and confidentiality of all such materials. Without written approval by the other
party, the party shall not disclose to ay third party any relevant materials, but with the exception of the following: (a) the public know or may know such materials (but not disclosed by the party accepting the materials); (b) materials needed to
be disclosed subject to ordinance or listing rules or precedents of stock exchange; or (c) any party necessarily discloses materials to its legal or financial consultant relating the transaction of this agreement, and this legal or financial
consultant shall have the obligation of confidentiality similar to that set forth in this. The breach of the obligation of confidentiality by staff or employed institution of any party shall be deemed as the breach of such obligation by that party,
and by whom the liabilities for breach shall be bored. No matter this agreement may terminate by any reason, this shall continue in force and effect. 
  
 9.    Further Warranties 
  
 The Parties to the agreement agree to promptly execute documents reasonably requisite to the performance of the provisions and the aim of this agreement or
documents beneficial to it, and to take actions reasonably requisite to the performance of the provisions and the aim of this agreement or actions beneficial to it. 
  
 10.    Miscellaneous 
  
 10.1    Amendment, Modification and Supplement 
  
 Upon amendment, modification and supplement of this agreement shall be
subject to the written agreement executed by each party. 
  

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 10.2    Observance of Laws and Regulations 
  
 The parties of the contract shall observe and make sure the operation
of each party fully observe all laws and regulations of PRC officially published and publicly gainable. 
  
 10.3    Entire Contract 
  
 Except the written amendment, supplement and modification of this agreement following the date of execution, this agreement and attachments 1
constitute the entire contract of the parties hereto with respect to the object hereof and supersedes all prior oral or written agreements, representation and contracts with respect to the object hereof. 
  
 10.4    Headings 
  
 The headings contained in this agreement are for convenience of
reference only and shall not affect the interpretation, explanation or in any other way the meaning of the provisions of this agreement. 
  
 10.5    Language 
  
 This agreement is executed in Chinese in four copies. 
  
 10.6    Severability 
  
 If any one or more provisions of this agreement are judged as invalid, illegal or nonenforceable in any way according to any laws or regulations,
the validity, legality and enforceability of other provisions hereof shall not be affected or impaired in any way. All parties shall, through sincere consultation, urge to replace those invalid, illegal or non-enforceable provisions with valid ones,
and from such valid provisions, similar economic effects shall be tried to reach as from those invalid, illegal or non-enforceable provisions. 
  
 10.7    Successor 
  
 This Contract shall bind and benefit the successor of each party and the transferee allowed by each party. 
  
 10.8    Survival 
  
 (a)    Any obligation taking place or at term
hereof prior to the end or termination ahead of the end of this agreement shall continue in force and effect notwithstanding the occurrence of the end or termination ahead of the end of the agreement. 
  
 (b)    Item 5, Item 7 and Item 10.8 of the
agreement hereof shall continue in force and effect after the termination of this agreement. 
  
 10.9    Waiver 
  
 Any party to this agreement may waive the terms and conditions of this agreement. Such waiver shall be valid only if set forth in an instrument in
writing signed by the party or parties to be bound thereby. Any waiver by a party to the breach hereof by other parties in certain situation shall not be construed as a waiver to any similar breach by other parties in other situation. 
  

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 IN WITNESS THEREFORE, the parties hereof have caused this agreement to be executed by their duly authorized
representatives as of the date first written above. 
  
 Party
A:    eLong, Inc. 
 Signature of Authorized Representative:     /s/ 
  
 Party B:    Tang Yue 
 Signature of Authorized Representative:    /s/ 
  
 Party C:    Beijing Asia Media Interactive Advertising Co., Ltd. 
 Signature of Authorized Representative:    /s/ 
  
 Party D:    eLongNet Information Technology (Beijing) Co., Ltd. 
 Signature of Authorized
Representative:    /s/ 
  

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