WAIVER OF NON-COMPETITION COVENANT
Exhibit 4.27
This WAIVER (this “Waiver”) is entered into as of November 1, 2008 (the “Effective
Date”) by and among eLong, Inc., an exempted limited liability company organized under the laws
of the Cayman Islands (the “Company”), eLongNet Information Technology (Beijing) Co., Ltd.,
a company organized under the laws of the People’s Republic of China (the “eLongNet”), and
Expedia, Inc., a company organized under the laws of the State of Delaware, USA
(“Expedia”), and Expedia Asia Pacific-Alpha Limited, an exempted limited liability company
organized under the laws of the Cayman Islands (“Expedia Asia Pacific-Alpha”).
RECITALS
WHEREAS, the Company, eLongNet, eLongNet Hi-Tech (Beijing) Co., Ltd. (“Hi-Tech”), IACT Asia
Pacific Limited, an exempted limited liability company organized under the laws of the Cayman
Islands (“IACT Asia Pacific”), and InterActiveCorp, a company organized under the laws of
the State of Delaware, USA (“IAC”), entered into that Transaction Agreement (the
“Agreement”) made as of the 23rd day of July, 2004;
WHEREAS, IACT Asia Pacific changed its name to Expedia Asia Pacific-Alpha, and IAC assigned
its interest in the Agreement to Expedia;
WHEREAS, Beijing eLong Information Technology Co., Ltd., an affiliate of the Company, holds a
license for Internet content provision services, and Hi-Tech has been dissolved;
WHEREAS, Xxxxxx.xxx, L.P., a Texas limited partnership (“Xxxxxx.xxx”) is a subsidiary
of Expedia;
WHEREAS, Section 5.10(a) of the Agreement, subject to certain exceptions, prohibits Expedia,
or any Expedia affiliate or subsidiary, from owning, managing, operating, financing, joining, or
controlling, or participating in the ownership, management, operation, financing or control of, or
being associated as a director, partner, lender, investor or representative in connection with, any
entity or business which operates a travel service in the People’s Republic of China
(“PRC”) or which markets travel services to PRC residents (the “Non-Compete
Covenant”) until such time as certain conditions are met, which, as of the Effective Date, have
not been met;
WHEREAS, Expedia, through one or more of its affiliates or subsidiaries, including but not
limited to Xxxxxx.xxx, desires to provide travel services in the PRC , exclusively via a Web site
located at xxx.xxxxxx.xx or any successor or replacement thereof which is owned and operated by
Xxxxxx.xxx (the “Xxxxxx.xx Web Site”) and to market the Xxxxxx.xx Web Site to PRC residents
(the “Purpose”), and in connection therewith, the Company and Xxxxxx.xxx wish to enter into
(i) a Private Label Agreement dated as of even date herewith (the “Private Label
Agreement”) and (ii) a Profit Share Agreement dated as of even date herewith (the “Profit
Share Agreement”), in order to implement and/or fulfill the Purpose; and
WHEREAS, the Company and eLongNet desire to waive their rights under the Non-Compete Covenant
of Section 5.10(a) of the Agreement insofar as it may restrict or prohibit Xxxxxx.xxx from pursuing
the Purpose pursuant to terms and conditions of the Private Label Agreement and the Profit Share
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby covenant and agree as
follows:
1. Waiver of Non-Competition Covenant. The Company and eLongNet, jointly and
severally, hereby waive their rights under the Non-Compete Covenant of Section 5.10(a) of the
Agreement solely as related to the Purpose to the extent contemplated and permitted by the Private
Label Agreement and the Profit Share Agreement, as the case may be. Expedia, through Xxxxxx.xxx,
is hereby expressly authorized to carry out all activities reasonably necessary to implement and/or
fulfill the Purpose pursuant to the Private Label Agreement and the Profit Share Agreement, as the
case may be, including but not limited to, the hiring of employees, and the provision of travel
services exclusively via the Xxxxxx.xx Web Site and to market the Xxxxxx.xx Web Site to PRC
Residents.
2. Waiver Reinstatement. If the Private Label Agreement or the Profit Share
Agreement, as the case may be, shall expire or terminate for any reason, the rights of the Company
and eLongNet under the Non-Compete Covenant of Section 5.10(a) of the Agreement waived by this
Waiver, shall be reinstated in their entirety upon such expiration or termination.
3. Except as specifically and to the extent amended pursuant to this Waiver, the Agreement
remains in full force and effect in accordance with its terms.
4. This Waiver may be executed in a number of identical counterparts. A telecopied facsimile
of a duly executed counterpart of this Waiver shall be sufficient evidence of the binding agreement
of each party to the terms herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Waiver as of the date first above
written.
| ELONG, INC. | EXPEDIA, INC. | |||||||||
By:
|
/s/ Guangfu Cui
Title: CEO |
By: | /s/ Xxxxx X. Xxxxxx
Title: Executive Vice President General Counsel and Secretary |
|||||||
| ELONG NET INFORMATION TECHNOLOGY (BEIJING) CO., LTD. | EXPEDIA ASIA PACIFIC-ALPHA LIMITED | |||||||||
By:
|
/s/ Guangfu Cui
|
By: | /s/ Xxxxx X. Xxxxxx
|
|||||||
| Title: Director | Title: Director | |||||||||
