Common use of Information Concerning Company Clause in Contracts

Information Concerning Company. As of their respective dates, Periodic Reports filed by the Company prior to the date this representation is made contained all material information relating to the Company and its operations and financial condition that was required to be disclosed therein. As of their respective dates, the Periodic Reports and other reports, schedules, forms, registration statements and other documents filed by the Company with the SEC prior to the date this representation is made, including the financial statements contained therein, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances when made. As of their respective dates, the consolidated financial statements of the Company and the Subsidiaries included in the Periodic Reports filed by the Company prior to the date this representation is made complied as to form in all material respects with applicable accounting requirements and the securities laws with respect thereto, such consolidated financial statements have been prepared in accordance with generally accepted accounting principles (“GAAP”), consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may have excluded footnotes or may have been condensed or summary statements) and fairly presented in all material respects the financial position of the Company and the Subsidiaries as of the dates thereof and the results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments that were not material individually or in the aggregate). Since the date of the most recent balance sheet included in the Periodic Reports filed prior to the date hereof (the “Latest Financial Date”), there has been no Material Adverse Effect relating to the Company’s business, financial condition or affairs not disclosed in the Periodic Reports filed prior to the date hereof. The Schedules hereto, individually and in the aggregate, do not contain any material, non-public information with respect to the Company and the Subsidiaries.

Information Concerning Company. As During the two (2) years prior to the date hereof, the Company has timely filed all Reports required to be filed by it with the Commission pursuant to the reporting requirements of the 1934 Act. The Reports contain all the information required to be disclosed therein as of their respective dates, Periodic Reports filed by the Company prior to the date this representation is made contained all material information relating to the Company and its operations and financial condition that was required to be disclosed therein. As of their respective dates, the Periodic Reports and other reports, schedules, forms, registration statements and other documents filed by the Company with the SEC prior to the date this representation is made, including the financial statements contained therein, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances when made. As of their respective dates, the consolidated financial statements of the Company and the Subsidiaries included in the Periodic Reports filed by the Company prior to the date this representation is made complied as to form in all material respects with applicable accounting requirements and the securities laws published rules and regulations of the Commission with respect thereto, such consolidated thereto as in effect as of the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles (“GAAP”)principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may have excluded exclude footnotes or may have been be condensed or summary statements) and fairly presented present in all material respects the financial position of the Company and the Subsidiaries as of the dates thereof and the results of their its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments that were which will not material be material, either individually or in the aggregate). Since the date last day of the fiscal year of the most recent balance sheet audited financial statements included in the Periodic Reports filed prior to the date hereof (the “Latest Financial Date”), and except as modified in the Reports or Other Written Information or in the Schedules hereto, there has been no Material Adverse Effect Event relating to the Company’s business, financial condition condition, or affairs not disclosed in the Periodic Reports filed prior to the date hereofReports. The Schedules hereto, individually and in the aggregate, Reports do not contain any material, non-public untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances when made. No other information with respect to provided by or on behalf of the Company and to any of the SubsidiariesSubscribers which is not included in the Reports (including, without limitation, information referred to in Section 3(d) of this Agreement) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein not misleading, in the light of the circumstance under which they are or were made.

Information Concerning Company. As of their respective dates(i) The Company has filed all forms, Periodic Reports filed by reports, statements, schedules and other documents with the Company prior to the date this representation is made contained all material information relating to the Company and its operations and financial condition that was SEC required to be disclosed thereinfiled by it since and including January 1, 2004 pursuant to the federal securities laws and the SEC rules and regulations thereunder (the "Commission Reports"). As The Commission Reports (i) were prepared in all material respects in accordance with the requirements of their respective datesthe 1933 Act, the Periodic Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the published rules and regulations of the SEC thereunder, each as applicable to such Commission Reports and other reports, schedules, forms, registration statements and other documents filed by the Company with the SEC prior to the date this representation is made, including the financial statements contained therein, (ii) did not as of the time they were filed contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading therein, in light of the circumstances when under which they were and will be made, not misleading. No subsidiary of the Company is subject to the periodic reporting requirements of the Exchange Act. As of their respective datesthe date hereof, there are no investigations or material unresolved comments issued by the staff of the SEC with respect to any of the Commission Reports. (ii) Each of the consolidated financial statements (including, in each case, any notes thereto) of the Company included in the Commission Reports has been prepared in all material respects in accordance with the published rules and regulations of the SEC (including Regulation S-X) and in accordance with United States generally accepted accounting principles applied on a consistent basis throughout the periods indicated (except as otherwise stated in such financial statements, including the related notes) and each fairly presents, in all material respects, the consolidated financial statements position, results of operations and cash flows of the Company and the Subsidiaries included in the Periodic Reports filed by the Company prior to the date this representation is made complied as to form in all material respects with applicable accounting requirements and the securities laws with respect thereto, such its consolidated financial statements have been prepared in accordance with generally accepted accounting principles (“GAAP”), consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may have excluded footnotes or may have been condensed or summary statements) and fairly presented in all material respects the financial position of the Company and the Subsidiaries subsidiaries as of the respective dates thereof and the results of their operations and cash flows for the respective periods then ended indicated therein, except as otherwise set forth in the notes thereto (subject, in the case of unaudited statements, to the inclusion of full notes thereto and to normal and recurring year-end audit adjustments that were not material adjustments). (iii) At the date of the most recent interim (March 31, 2005) financial statements of the Company included in the Commission Reports, neither the Company nor any of its subsidiaries had, and since such date neither the Company nor any of its subsidiaries has incurred, any liabilities or obligations of any nature (whether accrued, absolute, contingent, determinable or otherwise) which, individually or in the aggregate, are material to the Company or which have had or could have, individually or in the aggregate, a material adverse effect on the Company or its assets. (iv) Except as disclosed in the next sentence, none of the Company or any of its subsidiaries is indebted to any director or officer of the Company or any of its subsidiaries (except for amounts due as normal salaries and bonuses, in reimbursement of ordinary business expenses and directors' fees) and no such person is indebted to the Company or any of its subsidiaries, and there have been no other transactions of the type required to be disclosed pursuant to Items 402 or 404 of Regulation S-K promulgated by the SEC. As a result of the termination of the Management (as defined in the Letter Agreement). , the Company will owe, in aggregate, the following amount to the Management as severance and for other obligations, all as required by currently existing contractual obligations of the Company that have been explicitly disclosed in the Commission Reports: $2,0123,331. (v) The Company has heretofore furnished or made available to McEwen a complete and correct copy of any amendments ox xxxxfications which have not yet been filed with the SEC to Commission Reports which previously had been filed by the Company with the SEC pursuant to the 1933 Act and the rules and regulations promulgated thereunder or the Exchange Act and the rules and regulations promulgated thereunder. (vi) Since the date of the most recent balance sheet financial statements included in the Periodic Reports filed prior to the date hereof (the “Latest Financial Date”)Commission Reports, there has been no Material Adverse Effect relating to material adverse change in the Company’s 's business, financial condition or affairs not explicitly disclosed to the Purchaser. The Company has good and unencumbered title to all assets attributed to it in the Commission Reports (except to the extent encumbered as disclosed explicitly in the Commission Reports). The Company, directly or through its direct and indirect wholly-owned subsidiaries, owns 100% of all economic and voting interests in Tonkin Springs LLC. (vii) Except as disclosed in writing to the Periodic Reports filed prior to Purchaser on the date hereof. The Schedules hereto, individually the transactions contemplated by this Agreement and the Letter Agreement will not constitute a "change of control" under, require the consent from or the giving of notice to a third party pursuant to, permit a third party to terminate or accelerate vesting or repurchase rights, or create any other material detriment under the terms, conditions or provisions of any contract or obligation to which the Company or any of its subsidiaries is a party or by which any of them or any of their properties or assets may be bound. (viii) Since January 1, 2004, the Company and each of its subsidiaries has had in place "disclosure controls and procedures" (as defined in Rules 13a-14(c) and 15d-14(c) of the aggregateExchange Act) designed and maintained to ensure in all material respects that (a) transactions are executed in accordance with management's general or specific authorizations, do not contain any material(b) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principals and to maintain accountability for assets, non-public information (c) access to assets is permitted only in accordance with management's general or specific authorization, (d) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences, (e) all information (both financial and (ix) The Company has not granted any other person the right (whether or not contingent or inchoate) to merge with, or purchase assets from, the Company, and is not obligated to continue negotiations with any other person with respect to any such transaction or with respect to any issuance of the Company's capital stock. All previously announced merger, acquisition or capital-raising transactions have been terminated without any liability to the Company. Any earnest money and other amounts paid to the Company and in xxxxxxtion with the Subsidiariesforegoing have been forfeited to the Company.

Information Concerning Company. As of their respective dates, Periodic Reports filed by the Company prior to the date this representation is made contained all material information relating to the Company and its operations and financial condition that was required to be disclosed therein. As of their respective dates, the Periodic Reports and other reports, schedules, forms, registration statements and other documents filed by the Company with the SEC prior to the date this representation is made, including the financial statements contained therein, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances when made. As of their respective dates, the (i) The consolidated financial statements of the Company and the Subsidiaries included in the Periodic Reports filed by the Company prior to the date this representation is made complied as to form (i) comply in all material respects with applicable accounting requirements the rules and regulations of the securities laws Commission with respect theretothereto as were in effect at the time of filing, such consolidated financial statements have been prepared except as otherwise disclosed in the Company’s Current Report on Form 8-K dated December 15, 2006 and (ii) present fairly, in accordance with United States generally accepted accounting principles (“GAAP”), consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may have excluded footnotes or may have been condensed or summary statements) and fairly presented in all material respects the financial position of the Company and the Subsidiaries as of the dates thereof indicated therein, and the results of their its operations and cash flows for the periods then ended (therein specified, subject, in the case of unaudited statementsfinancial statements for interim periods, to normal normal, immaterial year-end audit adjustments that were not material individually or adjustments, except as otherwise disclosed in the aggregate)Company’s Current Report on Form 8-K dated December 15, 2006. Since the date last day of the fiscal year of the most recent balance sheet audited financial statements included in the Periodic Reports filed prior to the date hereof (the “Latest Financial Date”), and except as disclosed in the Reports or the Schedules hereto, there has been no Material Adverse Effect relating Effect. (ii) The Purchasers acknowledge that the Company will restate its financial results for the years 2003 and 2004 to include, without limitation, additional general and administrative compensation expenses related to equity issuances made during 2003 and 2004. The Company does not believe that such restatements will materially impact its 2006 financial results. (iii) The Company and its Subsidiaries have good and marketable title to all the Company’s businessreal property and owns all other properties and assets, financial condition or affairs not disclosed reflected as owned in the Periodic Reports filed prior to the date hereof. The Schedules hereto, individually and financial statements included in the aggregateReports, do subject to no lien, mortgage, pledge, charge or encumbrance of any kind except those, if any, reflected in such financial statements or which are not contain any material, non-public information with respect material to the Company and its Subsidiaries taken as a whole. The Company and its Subsidiaries hold their respective leased real and personal properties under valid and binding leases, except where the Subsidiariesfailure to do so would not reasonably be expected to individually or in the aggregate have a Material Adverse Effect.

Information Concerning Company. As During the two (2) years prior to the date hereof, the Company has filed all Reports required to be filed by it with the Commission pursuant to the reporting requirements of the 1934 Act. The Reports contain all the information required to be disclosed therein as of their respective dates, Periodic Reports filed by the Company prior to the date this representation is made contained all material information relating to the Company and its operations and financial condition that was required to be disclosed therein. As of their respective dates, the Periodic Reports and other reports, schedules, forms, registration statements and other documents filed by the Company with the SEC prior to the date this representation is made, including the financial statements contained therein, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances when made. As of their respective dates, the consolidated financial statements of the Company and the Subsidiaries included in the Periodic Reports filed by the Company prior to the date this representation is made complied as to form in all material respects with applicable accounting requirements and the securities laws published rules and regulations of the Commission with respect thereto, such consolidated thereto as in effect as of the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles (“GAAP”)principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may have excluded exclude footnotes or may have been be condensed or summary statements) and fairly presented present in all material respects the financial position of the Company and the Subsidiaries as of the dates thereof and the results of their its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments that were which will not material be material, either individually or in the aggregate). Since the date last day of the fiscal year of the most recent balance sheet audited financial statements included in the Periodic Reports filed prior to the date hereof (the “Latest Financial Date”), and except as modified in the Reports or Other Written Information or in the Schedules hereto, there has been no Material Adverse Effect Event relating to the Company’s business, financial condition condition, or affairs not disclosed in the Periodic Reports filed prior to the date hereofReports. The Schedules hereto, individually and in the aggregate, Reports do not contain any material, non-public untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances when made. No other information with respect to provided by or on behalf of the Company and to any of the SubsidiariesSubscribers which is not included in the Reports contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein not misleading, in the light of the circumstance under which they are or were made.

Information Concerning Company. As of their respective dates(i) The Company has filed all forms, Periodic Reports filed by reports, statements, schedules and other documents with the Company prior to the date this representation is made contained all material information relating to the Company and its operations and financial condition that was SEC required to be disclosed thereinfiled by it since and including January 31, 2007 pursuant to the federal securities laws and the SEC rules and regulations thereunder (the "Commission Reports"). As The Commission Reports (i) were prepared in all material respects in accordance with the requirements of their respective datesthe 1933 Act, the Periodic Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the published rules and regulations of the SEC thereunder, each as applicable to such Commission Reports and other reports, schedules, forms, registration statements and other documents filed by the Company with the SEC prior to the date this representation is made, including the financial statements contained therein, (ii) did not as of the time they were filed contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading therein, in light of the circumstances when under which they were and will be made, not misleading. As No subsidiary of their respective datesthe Company is subject to the periodic reporting requirements of the Exchange Act. (ii) Each of the consolidated financial statements (including, in each case, any notes thereto) of the Company included in the Commission Reports has been prepared in all material respects in accordance with the published rules and regulations of the SEC (including Regulation S-X) and in accordance with United States generally accepted accounting principles applied on a consistent basis throughout the periods indicated (except as otherwise stated in such financial statements, including the related notes) and each fairly presents, in all material respects, the consolidated financial statements position, results of operations and cash flows of the Company and the Subsidiaries included in the Periodic Reports filed by the Company prior to the date this representation is made complied as to form in all material respects with applicable accounting requirements and the securities laws with respect thereto, such its consolidated financial statements have been prepared in accordance with generally accepted accounting principles (“GAAP”), consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may have excluded footnotes or may have been condensed or summary statements) and fairly presented in all material respects the financial position of the Company and the Subsidiaries subsidiaries as of the respective dates thereof and the results of their operations and cash flows for the respective periods then ended indicated therein, except as otherwise set forth in the notes thereto (subject, in the case of unaudited statements, to the inclusion of full notes thereto and to normal and recurring year-end audit adjustments that were not material adjustments). (iii) At the date of the most recent interim financial statements of the Company included in the Commission Reports, neither the Company nor any of its subsidiaries had, and since such date neither the Company nor any of its subsidiaries has incurred, any liabilities or obligations of any nature (whether accrued, absolute, contingent, determinable or otherwise) which, individually or in the aggregate). , are material to the Company or which have had or could have, individually or in the aggregate, a material adverse effect on the Company or its assets. (iv) Since the date of the most recent balance sheet financial statements included in the Periodic Reports filed prior to the date hereof (the “Latest Financial Date”)Commission Reports, there has been no Material Adverse Effect relating to material adverse change in the Company’s 's business, financial condition or affairs not explicitly disclosed to the Purchaser. The Company has good and unencumbered title to all assets attributed to it in the Commission Reports (except to the extent encumbered as disclosed explicitly in the Commission Reports). (v) Except as disclosed in writing to the Periodic Reports filed prior to Purchaser on the date hereof. The Schedules hereto, individually the transactions contemplated by this Agreement and the Letter Agreement will not constitute a "change of control", require the consent from or the giving of notice to a third party pursuant to, permit a third party to terminate or accelerate vesting or repurchase rights, or create any other material detriment under the terms, conditions or provisions of any contract or obligation to which the Company or any of its subsidiaries is a party or by which any of them or any of their properties or assets may be bound. (vi) Since Jan 31, 2007, the Company and each of its subsidiaries has had in place “disclosure controls and procedures” (as defined in Rules 13a-14(c) and 15d-14(c) of the aggregateExchange Act) designed and maintained to ensure in all material respects that (a) transactions are executed in accordance with management’s general or specific authorizations, do not contain any material(b) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principals and to maintain accountability for assets, non-public information (c) access to assets is permitted only in accordance with management’s general or specific authorization, (d) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences, (e) all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported as specified in the Subsidiariesrules and forms of the SEC and (f) all such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the Chief Executive Officer and Chief Financial Officer of the Company required under the Exchange Act with respect to such reports. The Company’s disclosure controls and procedures ensure that information required to be disclosed by the Company in the reports filed with the SEC under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms. None of the Company’s or its subsidiaries’ records, systems, controls, data or information are recorded, stored, maintained, operated or otherwise wholly or partly dependent on or held by any means (including any electronic, mechanical or photographic process, whether computerized or not) which (including all means of access thereto and therefrom) are not under the exclusive ownership and direct control of the Company or its subsidiaries or accountants. As of the date of this Agreement, to the knowledge of the Company, (i) there is no reason that it will not be able, on a timely basis, to complete and include in the Company’s Annual Report on Form 10-K for the year ending Jan 31, 2010, management’s assessment of the Company’s internal controls and procedures for financial reporting in accordance with Section 404 of the Xxxxxxxx-Xxxxx Act and (ii) there is no material weakness, significant deficiency or control deficiency, in each case as such term is defined in PCAOB Auditing Std. No. 2. (vii) The Company has not granted any other person the right (whether or not contingent or inchoate) to merge with, or purchase assets from, the Company, and is not obligated to continue negotiations with any other person with respect to any such transaction or with respect to any issuance of the Company’s capital stock.

Information Concerning Company. As of their respective dates, the Periodic Reports filed by the Company prior to the date this representation is made contained all material information relating to the Company and its operations and financial condition that was required to be disclosed therein. As of their respective dates, the Periodic Reports and other reports, schedules, forms, registration statements and other documents filed by the Company with the SEC prior to the date this representation is made, including the financial statements contained therein, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances when made. As of their respective dates, the consolidated financial statements of the Company and the Subsidiaries included in the Periodic Reports filed by the Company prior to the date this representation is made complied as to form in all material respects with applicable accounting requirements and the securities laws with respect thereto, such consolidated financial statements have been prepared in accordance with generally accepted accounting principles (“"GAAP”"), consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may have excluded footnotes or may have been condensed or summary statements) and fairly presented in all material respects the financial position of the Company and the Subsidiaries as of the dates thereof and the results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments that were not material individually or in the aggregate). Since the date of the most recent balance sheet included in the Periodic Reports filed prior to the date hereof (the “Latest Financial Date”"LATEST FINANCIAL DATE"), there has been no Material Adverse Effect relating to the Company’s 's business, financial condition or affairs not disclosed in the Periodic Reports filed prior to the date hereof. The Schedules hereto, individually and in the aggregate, do not contain any material, non-public information with respect to the Company and the SubsidiariesReports.