Table of Contents

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

 

x

 

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

 

For the quarterly period ended: September 30, 2010

 

 

 

or

 

 

 

o

 

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

 

For the transition period from                to                

 

Commission File Number: 1-14066

 

SOUTHERN COPPER CORPORATION

(Exact name of registrant as specified in its charter)

 

Delaware

 

13-3849074

(State or other jurisdiction of incorporation or
organization)

 

(I.R.S. Employer Identification No.)

 

11811 North Tatum Blvd. Suite 2500 Phoenix, AZ

 

85028

(Address of principal executive offices)

 

(Zip Code)

 

Registrant’s telephone number, including area code: (602) 494-5328

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes x  No o

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).  Yes x  No o

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definitions of “large accelerated filer”, “accelerated filer and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer x

 

Accelerated filer o

 

 

 

Non-accelerated filer o

 

Smaller reporting company o

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).  Yes o  No x

 

As of October 29, 2010 there were outstanding 850,000,000 shares of Southern Copper Corporation common stock, par value $0.01 per share.

 

 

 



Table of Contents

 

Southern Copper Corporation (“SCC”)

 

INDEX TO FORM 10-Q

 

 

 

 

Page No.

 

 

 

 

Part I.  Financial Information:

 

 

 

 

 

 

Item. 1

Condensed Consolidated Financial Statements (Unaudited)

 

 

 

 

 

 

 

Condensed Consolidated Statement of Earnings for the three and nine months ended September 30, 2010 and 2009

 

3

 

 

 

 

 

Condensed Consolidated Balance Sheet as of September 30, 2010 and December 31, 2009

 

4

 

 

 

 

 

Condensed Consolidated Statement of Cash Flows for the three and nine months ended September 30, 2010 and 2009

 

5

 

 

 

 

 

Notes to Condensed Consolidated Financial Statements

 

6-31

 

 

 

 

Item 2.

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

32-50

 

 

 

 

Item 3.

Quantitative and Qualitative Disclosure about Market Risk

 

51-53

 

 

 

 

Item 4.

Controls and procedures

 

54

 

 

 

 

 

Report of Independent Registered Public Accounting Firm

 

55

 

 

 

 

Part II. Other Information:

 

 

 

 

 

 

Item 1.

Legal Proceedings

 

56

 

 

 

 

Item 1A.

Risk factors

 

56

 

 

 

 

Item 2.

Unregistered Sale of Equity Securities and Use of Proceeds

 

57

 

 

 

 

Item 6.

Exhibits

 

58-60

 

 

 

 

 

Signatures

 

61

 

 

 

 

 

List of Exhibits

 

62-64

 

 

 

 

Exhibit 15

Independent Accountants’ Awareness Letter

 

 

 

 

 

 

Exhibit 31.1

Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

 

 

 

 

 

Exhibit 31.2

Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

 

 

 

 

 

Exhibit 32.1

Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

 

 

 

 

 

Exhibit 32.2

Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

 

 

 

 

 

Exhibit 101

Financial statements for the three and nine months ended September 30, 2010 Formatted in XBRL: (i) the Condensed Consolidated Statement of Earnings, (ii) the Condensed Consolidated Balance Sheet, (iii) the Condensed Consolidated Statement of Cash Flows, and (iv) the Notes to Condensed Consolidated Financial Statements, tagged as blocks of text.

 

Submitted electronically with this report

 

2



Table of Contents

 

PART I — FINANCIAL INFORMATION

 

Item 1.  Condensed Consolidated Financial Statements

 

Southern Copper Corporation

 

CONDENSED CONSOLIDATED STATEMENT OF EARNINGS

(Unaudited)

 

 

 

3 Months Ended

 

9 Months Ended

 

 

 

September 30,

 

September 30,

 

 

 

2010

 

2009

 

2010

 

2009

 

 

 

(in thousands, except per share amounts)

 

 

 

 

 

 

 

 

 

 

 

Net sales

 

$

1,257,864

 

$

1,151,769

 

$

3,650,509

 

$

2,598,276

 

Operating costs and expenses:

 

 

 

 

 

 

 

 

 

Cost of sales (exclusive of depreciation, amortization and depletion shown separately below)

 

542,503

 

529,893

 

1,563,998

 

1,324,824

 

Selling, general and administrative

 

21,262

 

23,804

 

64,944

 

60,697

 

Depreciation, amortization and depletion

 

82,330

 

82,266

 

242,074

 

239,202

 

Exploration

 

8,871

 

7,075

 

27,401

 

17,498

 

Total operating costs and expenses

 

654,966

 

643,038

 

1,898,417

 

1,642,221

 

 

 

 

 

 

 

 

 

 

 

Operating income

 

602,898

 

508,731

 

1,752,092

 

956,055

 

 

 

 

 

 

 

 

 

 

 

Interest expense

 

(49,816

)

(25,126

)

(118,654

)

(74,402

)

Capitalized interest

 

 

(3,287

)

 

2,156

 

Gain on derivative instruments

 

 

(37

)

 

4,144

 

Other income (expense)

 

(9,180

)

760

 

(14,236

)

2,628

 

Interest income

 

2,015

 

845

 

5,395

 

6,018

 

Income before income taxes

 

545,917

 

481,886

 

1,624,597

 

896,599

 

 

 

 

 

 

 

 

 

 

 

Income taxes

 

178,717

 

167,661

 

556,859

 

327,099

 

 

 

 

 

 

 

 

 

 

 

Net income

 

367,200

 

314,225

 

1,067,738

 

569,500

 

 

 

 

 

 

 

 

 

 

 

Less: Net income attributable to the non-controlling interest

 

2,029

 

1,774

 

5,936

 

3,389

 

 

 

 

 

 

 

 

 

 

 

Net income attributable to SCC

 

$

365,171

 

$

312,451

 

$

1,061,802

 

$

566,111

 

 

 

 

 

 

 

 

 

 

 

Per common share amounts:

 

 

 

 

 

 

 

 

 

Net income attributable to SCC - basic and diluted

 

$

0.43

 

$

0.37

 

$

1.25

 

$

0.67

 

Dividends paid to SCC common shareholders

 

$

0.37

 

$

0.10

 

$

1.25

 

$

0.26

 

Weighted average common shares outstanding - basic and diluted

 

850,000

 

850,009

 

850,000

 

850,929

 

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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Table of Contents

 

Southern Copper Corporation

 

CONDENSED CONSOLIDATED BALANCE SHEET

(Unaudited)

 

 

 

September 30,

 

December 31,

 

 

 

2010

 

2009

 

 

 

(in thousands)

 

ASSETS

 

 

 

 

 

Current assets:

 

 

 

 

 

Cash and cash equivalents

 

$

2,236,698

 

$

772,306

 

Short-term investments

 

59,379

 

22,948

 

Accounts receivable trade, less allowance for doubtful accounts (2010 - $-; 2009 - $4,614)

 

391,796

 

407,979

 

Accounts receivable other (including related parties 2010 - $3,020; 2009 - $4,598)

 

46,520

 

31,971

 

Inventories

 

430,397

 

456,122

 

Deferred income tax

 

33,685

 

19,672

 

Other current assets

 

64,592

 

67,131

 

Total current assets

 

3,263,067

 

1,778,129

 

 

 

 

 

 

 

Property, net

 

4,042,592

 

3,969,558

 

Leachable material, net

 

76,105

 

107,262

 

Intangible assets, net

 

115,273

 

113,840

 

Deferred income tax

 

48,124

 

52,670

 

Other assets

 

66,261

 

41,113

 

Total assets

 

$

7,611,422

 

$

6,062,572

 

 

 

 

 

 

 

LIABILITIES

 

 

 

 

 

Current liabilities:

 

 

 

 

 

Current portion of long-term debt

 

$

10,000

 

$

10,000

 

Accounts payable

 

219,955

 

283,344

 

Accrued income taxes

 

176,019

 

91,359

 

Due to related parties

 

4,145

 

359

 

Accrued workers’ participation

 

174,708

 

150,692

 

Accrued interest

 

63,334

 

39,795

 

Other accrued liabilities

 

29,070

 

26,876

 

Total current liabilities

 

677,231

 

602,425

 

 

 

 

 

 

 

Long-term debt

 

2,755,263

 

1,270,252

 

Deferred income taxes

 

100,163

 

143,508

 

Non-current taxes payable

 

31,689

 

26,201

 

Other liabilities and reserves

 

91,203

 

77,607

 

Asset retirement obligation

 

60,144

 

48,925

 

Total non-current liabilities

 

3,038,462

 

1,566,493

 

 

 

 

 

 

 

Commitments and Contingencies (Note M)

 

 

 

 

 

 

 

 

 

 

 

STOCKHOLDERS’ EQUITY

 

 

 

 

 

Common stock

 

8,846

 

8,846

 

Additional paid-in capital

 

1,029,573

 

1,013,326

 

Retained earnings

 

3,469,232

 

3,469,930

 

Accumulated other comprehensive loss

 

(13,060

)

(13,061

)

Treasury stock

 

(618,064

)

(603,413

)

Total SCC stockholders’ equity

 

3,876,527

 

3,875,628

 

Non-controlling interest

 

19,202

 

18,026

 

Total equity

 

3,895,729

 

3,893,654

 

 

 

 

 

 

 

Total liabilities and equity

 

$

7,611,422

 

$

6,062,572

 

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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Southern Copper Corporation

 

CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS

(Unaudited)

 

 

 

3 Months Ended

 

9 Months Ended

 

 

 

September 30,

 

September 30,

 

 

 

2010

 

2009

 

2010

 

2009

 

 

 

(in thousands)

 

OPERATING ACTIVITIES

 

 

 

 

 

 

 

 

 

Net income

 

$

367,200

 

$

314,225

 

$

1,067,738

 

$

569,500

 

Adjustments to reconcile net earnings to net cash provided from operating activities:

 

 

 

 

 

 

 

 

 

Depreciation, amortization and depletion

 

82,330

 

82,266

 

242,074

 

239,202

 

Loss (gain) on currency translation effect

 

6,282

 

(3,786

)

13,888

 

9,599

 

Provision (benefit) for deferred income taxes

 

(32,311

)

(13,274

)

(46,823

)

40,116

 

Gain on sale of short-term investment

 

(291

)

(881

)

(743

)

(3,200

)

Unrealized gain on derivative instruments

 

 

(8,319

)

 

(57,037

)

 

 

 

 

 

 

 

 

 

 

Cash provided from (used for) operating assets and liabilities:

 

 

 

 

 

 

 

 

 

Accounts receivable

 

(17,314

)

(103,312

)

1,634

 

(302,840

)

Inventories

 

16,273

 

38,872

 

25,725

 

33,940

 

Accounts payable and accrued liabilities

 

127,561

 

(9,281

)

74,806

 

(360,446

)

Other operating assets and liabilities

 

(15,865

)

84,113

 

(9,440

)

127,895

 

Net cash provided from operating activities

 

533,865

 

380,623

 

1,368,859

 

296,729

 

 

 

 

 

 

 

 

 

 

 

INVESTING ACTIVITIES

 

 

 

 

 

 

 

 

 

Capital expenditures

 

(112,885

)

(110,559

)

(281,173

)

(316,740

)

Purchase of short-term investments

 

(11,946

)

 

(49,726

)

 

Proceeds from sale of short-term investments

 

3,002

 

8,815

 

14,038

 

39,620

 

Other

 

1,235

 

858

 

6,582

 

2,798

 

Net cash used for investing activities

 

(120,594

)

(100,886

)

(310,279

)

(274,322

)

 

 

 

 

 

 

 

 

 

 

FINANCING ACTIVITIES

 

 

 

 

 

 

 

 

 

Debt incurred

 

 

 

1,489,674

 

 

Debt repaid

 

 

 

(5,000

)

(5,000

)

Capitalized debt issuance cost

 

(676

)

 

(8,831

)

 

Dividends paid to common stockholders

 

(314,500

)

(86,322

)

(1,062,498

)

(224,128

)

Distributions to non-controlling interest

 

(1,689

)

(381

)

(4,660

)

(570

)

Repurchase of common shares

 

 

(337

)

(380

)

(71,903

)

Other

 

116

 

351

 

483

 

990

 

Net cash provided from (used for) financing activities

 

(316,749

)

(86,689

)

408,788

 

(300,611

)

 

 

 

 

 

 

 

 

 

 

Effect of exchange rate changes on cash and cash equivalents

 

(4,447

)

(15,308

)

(2,976

)

(25,256

)

Increase (decrease) in cash and cash equivalents

 

92,075

 

177,740

 

1,464,392

 

(303,460

)

Cash and cash equivalents, at beginning of period

 

2,144,623

 

235,540

 

772,306

 

716,740

 

Cash and cash equivalents, at end of period

 

$

2,236,698

 

$

413,280

 

$

2,236,698

 

$

413,280

 

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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Southern Copper Corporation

 

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(Unaudited)

 

A.    In the opinion of Southern Copper Corporation, (the “Company”, “Southern Copper” or “SCC”), the accompanying unaudited condensed consolidated financial statements contain all adjustments (consisting only of normal recurring adjustments) necessary to state fairly the Company’s financial position as of September 30, 2010 and the results of operations and the cash flow for the three and nine months ended September 30, 2010 and 2009.  Certain prior period amounts have been reclassified to conform to the current period’s presentation.  The condensed consolidated financial statements for the three and nine months ended September 30, 2010 and 2009 have been subject to a review by Galaz, Yamazaki, Ruiz Urquiza S.C., a member firm of Deloitte Touche Tohmatsu Limited, the Company’s independent registered public accounting firm, whose report dated November 3, 2010 is presented on page 55.  The results of operations for the three and nine months ended September 30, 2010 and 2009 are not necessarily indicative of the results to be expected for the full year.  The December 31, 2009 balance sheet data was derived from audited financial statements, but does not include all disclosures required by generally accepted accounting principles in the United States of America.  The accompanying condensed consolidated financial statements should be read in conjunction with the consolidated financial statements at December 31, 2009 and notes included in the Company’s 2009 annual report on Form 10-K.

 

B.    Adoption of New Accounting Standards:

 

In the nine months ended September 30, 2010 the Company adopted the following Accounting Standards Updates (“ASU”) to the FASB Accounting Standards Codification (the “ASC”) issued by the Financial Accounting Standard Board (“FASB”).

 

ASU No. 2010-09: In February 2010 the FASB issued ASU No. 2010-09 “Amendments to Certain Recognition and Disclosure requirements,” an amendment of ASC topic 855 “Subsequent events.”  This ASU requires a SEC filer to evaluate subsequent events through the date the financial statements are issued.  In addition, public filers are no longer required to disclose the date through which the evaluation of subsequent events was carried out.  The Company adopted this ASU on the date it was issued.

 

ASU No. 2010-06: In January 2010, the FASB issued ASU No. 2010-06 “Fair Value Measurements and Disclosures (Topic 820): Improving Disclosures about Fair Value Measurements,” an update of ASC Subtopic 820-10 “Fair Value Measurements and Disclosures - Overall.”

 

This ASU includes the following new disclosure requirements:

 

1.     Significant transfers in and out of Levels 1 and 2 fair value measurements and a description of the reasons for the transfers.

 

2.     The reconciliation of activity in Level 3 fair value measurements should present separately information about purchases, sales, issuances and settlements on a gross basis rather than as one net number.

 

This ASU also clarifies existing disclosures as follows:

 

1.     A reporting entity should provide fair value measurement disclosures for each class of assets and liabilities.  A class is often a subset of assets or liabilities within a line item in the statement of financial position.  A reporting entity needs to use judgment in determining the appropriate classes of assets and liabilities.

 

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2.     Disclosures about inputs and valuation techniques used to measure fair value for both recurring and nonrecurring fair value measurements.  These disclosures are required for fair value measurements that fall in either Level 2 or Level 3.

 

The new disclosures and clarifications of existing disclosures are effective for interim and annual reporting periods beginning after December 15, 2009, except for the disclosures about purchases, sales, issuances, and settlements in the roll forward of activity in Level 3 fair value measurements, which are effective for fiscal years beginning after December 15, 2010, and for interim periods within those fiscal years.  Please see disclosures required in Note Q “Financial instruments.”

 

ASU 2010-02: In January 2010, the FASB issued ASU 2010-02 “Accounting and Reporting for Decreases in Ownership of a Subsidiary—a Scope Clarification,” an update of Subtopic 810-10 “Consolidation-Overall” to address implementation issues related to the changes in ownership provisions in Subtopic 810-10, which establishes the accounting and reporting guidance for non-controlling interests and changes in ownership interests of a subsidiary.

 

The amendments in this ASU are effective beginning in the first interim or annual reporting period ending on or after December 15, 2009 and should be applied retrospectively to the first period that an entity adopted Statement 160.  The Company has adopted this ASU and will apply it to future decreases in ownership of subsidiaries.

 

C.    Short-term Investments:

 

Short-term investments were as follows (in millions):

 

 

 

At

 

Investments

 

September 30, 2010

 

December 31, 2009

 

Trading securities

 

$

49.7

 

$

 

Weighted average interest rate

 

1.37

%

 

 

 

 

 

 

 

 

Available for sale

 

$

9.7

 

$

22.9

 

Weighted average interest rate

 

1.01

%

0.63

%

Total

 

$

59.4

 

$

22.9

 

 

Trading securities: consist of $50.0 million Petroleos Mexicanos bonds acquired at 99.4% and with original maturity on December 3, 2012.  The Company has the intention to sell these bonds in the short-term.

 

Available for sale investments consist of securities issued by public companies.  Each security is independent of the others and as of September 30, 2010 includes corporate bonds and asset and mortgage backed obligations.  As of September 30, 2010 and December 31, 2009, gross unrealized gains and losses on available for sale securities were not material.

 

Related to these investments the Company earned interest which was recorded as interest income in the condensed consolidated statement of earnings.  Also the Company redeemed some of these securities and recognized gains, which were recorded as other income in the condensed consolidated statement of earnings.

 

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The following table summarizes the activity of these investments (in millions):

 

 

 

Three months ended

 

Nine months ended

 

 

 

September 30,

 

September 30,

 

 

 

2010

 

2009

 

2010

 

2009

 

Interest earned

 

$

0.1

 

$

0.1

 

$

0.1

 

$

0.7

 

Investment redeemed

 

$

3.0

 

$

8.8

 

$

14.2

 

$

39.6

 

Gain in fair value

 

$

0.3

 

$

0.9

 

$

0.7

 

$

3.2

 

 

D.    Inventories:

 

Inventories were as follows:

 

(in millions)

 

September 30,
2010

 

December 31,
2009

 

Metals at lower of average cost or market:

 

 

 

 

 

Finished goods

 

$

55.7

 

$

55.5

 

Work-in-process

 

128.2

 

150.8

 

Supplies at average cost

 

246.5

 

249.8

 

Total inventories

 

$

430.4

 

$

456.1

 

 

E.     Income taxes:

 

The income tax provision and the effective income tax rate for the nine months ended September 30, 2010 and 2009 were as follows:

 

(in millions)

 

2010

 

2009

 

Income tax provision

 

$

556.9

 

$

327.1

 

Effective income tax rate

 

34.3

%

36.5

%

 

These provisions include income taxes for Peru, Mexico and the United States.  The decrease in the effective tax rate for the nine months ended September 30, 2010 is largely due to the proportionately higher incremental U.S. income tax provided on dividend distributions made by our Mexican subsidiary to the U.S. parent in the nine months ended September 30, 2009.  Because the pretax earnings in the nine months period of 2009 were significantly lower than the 2010 pretax earnings, the effect of this incremental tax had a relatively large impact on the effective rate.  For the full year 2009 the final effective tax rate was 33.5%.  This dividend distribution is taxable in the U.S. at the difference between the 35% U.S. statutory rate and the Mexican statutory tax rate, which is currently 30%.

 

As of March 27, 2009, Grupo Mexico, S.A.B. de C.V. (“Grupo Mexico”), through its wholly-owned subsidiary, Americas Mining Corporation (“AMC”), became the beneficial owner of 80% of SCC’s common stock.  As a result of this new level of ownership, beginning March 27, 2009 SCC no longer files a separate U.S. federal income tax return and its operating results are included in the AMC consolidated U.S. federal income tax return.  In addition to now holding an 80% interest in SCC, AMC also owns 100% of ASARCO LLC (“Asarco”) and its subsidiaries.  It is expected that current and deferred taxes will be allocated to members of the AMC group as if each were a separate taxpayer.  The Company has initiated discussions with AMC to put in place a tax sharing agreement in order to establish this allocation as well as other procedures and policies necessary for an equitable management of U.S. federal income tax matters.  SCC provides current and deferred income taxes as if it were a separate filer.

 

Income taxes payable on the Company’s balance sheet are amounts accrued for income taxes payable to the Peruvian and Mexican government taxing agencies and also include the U.S. tax liability of the Company, which will be paid to AMC for the Company’s share of the U.S. tax liability.

 

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Accounting for Uncertainty in Income Taxes:

 

There was no material changes in the unrecognized tax benefits in the nine months ended September 30, 2010.

 

F.     Provisionally Priced Sales:

 

At September 30, 2010, the Company has recorded provisionally priced sales of copper at average forward prices per pound, and molybdenum at the September 30, 2010 market price per pound.  These sales are subject to final pricing based on the average monthly London Metal Exchange (LME) or the New York Commodities Exchange (COMEX) copper prices and Dealer Oxide molybdenum prices in the future month of settlement.

 

Following are the provisionally priced copper and molybdenum sales outstanding at September 30, 2010:

 

Copper
(million lbs.)

 

Priced at

 

Month of
Settlement

 

5.4

 

3.63

 

October 2010

 

 

 

 

 

 

 

Molybdenum
(million lbs.)

 

Priced at

 

Month of
Settlement

 

3.6

 

15.35

 

October 2010

 

2.9

 

15.35

 

November 2010

 

2.9

 

15.35

 

December 2010

 

0.1

 

15.35

 

January 2011

 

9.5

 

 

 

 

 

 

Management believes that the final pricing of these sales will not have a material effect on the Company’s financial position or results of operations.

 

G.    Derivative Instruments:

 

The Company occasionally uses derivative instruments to manage its exposure to market risk from changes in commodity prices and interest rate and exchange rate risk exposures.  The Company does not enter into derivative contracts unless it anticipates a future activity that is likely to occur that will result in exposing the Company to market risk.  The Company did not hold any derivative contracts for the nine months ended September 30, 2010, except as disclosed below.

 

Copper derivatives:

 

Beginning on September 29, 2010 and through October 26th 2010, the Company entered into copper derivative contracts to protect the sales value of a portion of its fourth quarter of 2010 and 2011 copper production, as follows:

 

 

 

4th Quarter

 

Year 2011

 

Swap contracts (1)

 

 

 

 

 

Pounds in millions

 

170.9

 

150.1

 

Weighted average LME price

 

$

3.67

 

$

3.73

 

 

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Zero Collar Contracts (1)

 

 

 

 

 

Pounds in millions

 

 

211.6

 

Average LME cap price

 

 

$

4.54

 

Average LME floor price

 

 

$

3.00

 

 


(1) Pounds are proportionally distributed over the periods.  Prices are the same for all months in periods

 

Gas swaps:

 

During the nine months ended September 30, 2010 and at September 30, 2010 the Company did not hold any gas derivative contracts.

 

Exchange rate derivatives, U.S. dollar/Mexican peso contracts:

 

During the nine months ended September 30, 2010 and at September 30, 2010 the Company did not hold any exchange rate derivative contracts.

 

H.    Asset Retirement Obligation:

 

The Company maintains an estimated asset retirement obligation for its mining properties in Peru, as required by the Peruvian Mine Closure Law.  In accordance with the requirements of this law, the Company’s closure plans have been approved by the Peruvian Ministry of Energy and Mines (“MINEM”).  The closure cost recognized for this liability consists of the cost as outlined in its closure plans, which includes the dismantling of the Toquepala and Cuajone concentrators, the smelter and refinery in Ilo, and the shops and auxiliary facilities at the three units.

 

The following table summarizes the asset retirement obligation activity for the nine months ended September 30, 2010 and 2009 (in millions):

 

 

 

2010

 

2009

 

Balance as of January 1

 

$

48.9

 

$

18.0

 

Changes in estimates

 

7.4

 

15.9

 

Additions

 

 

 

Accretion expense

 

3.8

 

0.6

 

Balance as of September 30,

 

$

60.1

 

$

34.5

 

 

I.      Related Party Transactions:

 

Receivable and payable balances with related party companies are shown below (in millions):

 

 

 

As of

 

 

 

September 30, 2010

 

December 31, 2009

 

Accounts receivable:

 

 

 

 

 

Grupo Mexico, S.A.B de C.V. and affiliates

 

$

0.8

 

$

1.5

 

Ferrocarril Mexicano, S.A. de C.V.

 

 

1.4

 

Breaker, S.A. de C.V

 

 

0.1

 

Mexico Proyectos y Desarrollos, S.A. de C.V. and affiliates

 

2.2

 

1.6

 

 

 

$

3.0

 

$

4.6

 

 

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Accounts payable:

 

 

 

 

 

Grupo Mexico S.A. de C.V. and affiliates

 

$

3.0

 

$

 

Higher Technology S.A.C.

 

0.1

 

0.4

 

Asarco LLC

 

0.9

 

 

Ferrocarril Mexicano S.A. de C.V.

 

0.1

 

 

 

 

$

4.1

 

$

0.4

 

 

The Company has entered into certain transactions in the ordinary course of business with parties that are controlling shareholders or their affiliates.  These transactions include the lease of office space, air transportation and construction services and products and services relating to mining and refining.  The Company lends and borrows funds among affiliates for acquisitions and other corporate purposes.  These financial transactions bear interest and are subject to review and approval by senior management, as are all related party transactions.  It is the Company’s policy that the Audit Committee of the Board of Directors shall review all related party transactions.  The Company is prohibited from entering or continuing a material related party transaction that has not been reviewed and approved or ratified by the Audit Committee.

 

Purchase activity:

 

The following table summarizes the purchase activity with related parties in the nine months ended September 30, 2010 and 2009 (in millions):

 

 

 

As of September 30,

 

 

 

2010

 

2009

 

Grupo Mexico and affiliates:

 

 

 

 

 

Grupo Mexico Servicios, S.A de C.V

 

$

10.3

 

$

10.3

 

Ferrocarril Mexicano, S.A de C.V.

 

2.2

 

8.4

 

Mexico Proyectos y Desarrollos, S.A. de C.V. and affiliates

 

21.5

 

12.1

 

Perforadora Mexico S.A. de C.V.

 

0.2

 

 

Consorcio Tricobre

 

2.9

 

 

 

 

 

 

 

 

Other Larrea family companies:

 

 

 

 

 

Mexico Compañia de Productos Automotrices, S.A. de C.V.

 

1.9

 

0.2

 

Mexico Transportes Aereos, S.A. de C.V.

 

2.4

 

1.6

 

 

 

 

 

 

 

Companies with relationships to SCC executive officers families:

 

 

 

 

 

Higher Technology S.A.C.

 

2.3

 

4.0

 

Servicios y Fabricaciones Mecanicas S.A.C.

 

0.2

 

0.2

 

Sempertrans France Belting Technology

 

0.3

 

0.6

 

PIGOBA, S.A. de C.V.

 

0.5

 

0.1

 

Breaker, S.A. de C.V.

 

0.5

 

0.8

 

Total purchased

 

$

45.2

 

$

38.3

 

 

Grupo Mexico, the Company’s ultimate parent and the majority indirect stockholder of the Company, and its affiliates provide various services to the Company.  These services are primarily related to accounting, legal, tax, financial, treasury, human resources, price risk assessment and hedging, purchasing, procurement and logistics, sales and administrative and other support services.  The Company pays Grupo Mexico Servicios, S.A de C.V., a subsidiary of Grupo Mexico, for these services.  The Company expects to continue to pay for these services in the future.

 

In addition, during the nine months ended September 30, 2010 the Company made donations of $0.8 million to Fundacion Grupo Mexico, an organization dedicated to

 

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promoting social and economic development of the communities close to our Mexican operations.

 

The Company’s Mexican operations paid fees for freight services provided by Ferrocarril Mexicano, S.A de C.V. for construction services provided by Mexico Constructora Industrial, S.A. de C.V. and its affiliates and for drilling services provided by Perforadora Mexico S.A. de C.V.; the three companies are subsidiaries of Grupo Mexico.

 

The Company’s Peruvian operations paid fees for engineering and consulting services provided by Consorcio Tricobre, a Peruvian company in which Servicios de Ingenieria Consultec, S.A. de C. V., an indirect subsidiary of Grupo Mexico has 42.7% participation.

 

The Larrea family controls a majority of the capital stock of Grupo Mexico, and has extensive interests in other businesses, including oil drilling services, construction, aviation, and real estate.  The Company engages in certain transactions in the ordinary course of business with other entities controlled by the Larrea family relating to mining and refining services, the lease of office space, sale of vehicles and air transportation and construction services.  In connection with this, the Company paid fees for maintenance services and sale of vehicles provided by Mexico Compañia de Productos Automotrices, S.A. de C.V., a company controlled by the Larrea family.

 

Additionally, in 2007, the Company’s Mexican subsidiaries provided guaranties for two loans obtained by Mexico Transportes Aereos, S.A. de C.V. (“MexTransport”), a company controlled by the Larrea family, from Bank of Nova Scotia in Mexico.  These loans require semi-annual repayments.  Conditions and balance as of September 30, 2010 are as follows:

 

 

 

Loan 1

 

Loan 2

 

Total

 

Loans (in millions)

 

$2.3

 

$8.5

 

$10.8

 

Maturity

 

August 2010

 

August 2013

 

 

 

Interest rate

 

Libor + 0.65%

 

Libor + 0.15%

 

 

 

Remaining balance at September 30, 2010 (in millions)

 

$—

 

$3.9

 

$3.9

 

 

MexTransport provides aviation services to the Company’s Mexican operations.  The guaranty provided to MexTransport is backed up by the transport services provided by MexTransport to the Company’s Mexican subsidiaries.  If MexTransport defaults on the loan, SCC’s subsidiaries would have to satisfy the guaranty and repay to the bank the remaining balances, plus interest.  The Company pays fees to MexTransport for aviation services.

 

The Company purchased industrial materials from Higher Technology S.A.C in which Mr. Carlos Gonzalez has a proprietary interest.  Also the Company paid fees for maintenance services provided by Servicios y Fabricaciones Mecanicas S.A.C., a company in which Mr. Carlos Gonzalez has a proprietary interest.  Mr. Carlos Gonzalez is the son of SCC’s Chief Executive Officer.

 

The Company purchased industrial material from Sempertrans France Belting Technology, in which Mr. Alejandro Gonzalez is employed as a sales representative.  Also, the Company purchased industrial material from PIGOBA, S.A. de C.V., a company in which Mr. Alejandro Gonzalez has a proprietary interest.  Mr. Alejandro Gonzalez is the son of SCC’s Chief Executive Officer.

 

The Company purchased industrial material and services from Breaker, S.A. de C.V.; a company in which Mr. Jorge Gonzalez, son-in-law of SCC’s Chief Executive Officer, has a proprietary interest.

 

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Sales activity:

 

In the second quarter of 2010 the Company recovered from Asarco, a subsidiary of Grupo Mexico, $7.7 million related to a previously written-off net accounts receivable position.  This recovery was recorded in the condensed consolidated statement of earnings as follows: $5.0 million in cost of sales, $1.6 million in other income and $1.1 million as interest income.  Also, in the nine months ended September 30, 2010 the Company sold $3.4 million of copper anodes and sulfuric acid to Asarco.

 

In addition, in the third quarter of 2010, the Company received fees of $0.2 million from building rental and maintenance services provided to Perforadora Mexico S.A. de C.V., a subsidiary of Grupo Mexico.

 

It is anticipated that in the future the Company will enter into similar transactions with these same parties.

 

J.                Financing:

 

New SCC Notes:

 

On April 16, 2010 the Company issued $1.5 billion in fixed-rate unsecured notes with a discount of $10.3 million, which is being amortized over the term of the related debt.  Net proceeds will be used for general corporate purposes, including the financing of the Company’s capital expenditure program.

 

The $1.5 billion fixed-rate senior unsecured notes were issued in two tranches, $400 million due in 2020 at an annual interest rate of 5.375% and $1.1 billion due in 2040 at an annual interest rate of 6.75%.  The Company has registered these notes under the Securities Act of 1933, as amended.

 

Interest on the notes will be paid semi-annually in arrears.  The notes constitute our general unsecured obligations and the series of notes rank pari passu with each other and rank pari passu in right of payment with all of our other existing and future unsecured and unsubordinated indebtedness.

 

Also, related to these notes the Company has deferred $8.8 million of costs associated with the issuance of this facility, which is included in “Other assets” non-current in the condensed consolidated balance sheet and is being amortized as interest expense over the life of the loans.

 

In connection with the transaction, on April 16, 2010 the Company entered into a base indenture with Wells Fargo Bank, National Association, as trustee, as well as a first supplemental indenture and a second supplemental indenture which provide for the issuance, and set forth the terms of, the two tranches of notes described above.  The indentures contain covenants that limit the Company’s ability to, among other things, incur certain liens securing indebtedness, engage in certain sale and leaseback transactions, and enter into certain consolidations, mergers, conveyances, transfers or leases of all or substantially all the Company’s assets.  If we experience a Change of Control Triggering Event (as defined in the indentures governing the notes), we must offer to repurchase the notes at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any.  A Change of Control Trigger Event also includes a rating decline, that is, if the rating of the notes, by at least one of the rating agencies shall be decreased by one or more gradations.

 

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Changes in Credit Risk Rating:

 

In connection with the issuance of the new notes, on April 1, 2010 Moody’s investor service upgraded to Baa2 from Baa3 the Company’s senior unsecured ratings and the rating on our Yankee bonds.  Also on April 5, 2010 Fitch and Standard & Poor’s (“S&P”) ratings services assigned ratings of ‘BBB’ and ‘BBB-’, respectively, to the new notes issued.  At the same time, these credit rating agencies confirmed their long-term corporate credit rating on SCC (‘Baa2’, ‘BBB and ‘BBB- for Moody’s, Fitch and S&P, respectively).

 

K.            Benefit Plans:

 

SCC Defined Benefit Pension Plans

 

The components of the net periodic benefit costs for the nine months ended September 30, 2010 and 2009 are as follows (in millions):

 

 

 

2010

 

2009

 

Interest cost

 

$

0.5

 

$

0.5

 

Expected return on plan assets

 

(0.5

)

(0.4

)

Amortization of net loss (gain)

 

(*

)

0.1

 

Net periodic benefit costs

 

$

 

$

0.2

 

 


(*) amount is lower than $0.1 million

 

SCC Post-retirement Health Care Plan

 

The components of the net periodic benefit costs for the post-retirement health care plan for the nine months ended September 30, 2010 and 2009 are individually, and in total, less than $0.1 million.

 

Minera Mexico Pension Plans

 

The components of the net periodic benefit costs for the nine months ended September 30, 2010 and 2009 are as follows (in millions):

 

 

 

2010

 

2009

 

Interest cost

 

$

1.2

 

$

1.2

 

Service cost

 

1.5

 

1.4

 

Expected return on plan assets

 

(2.2

)

(1.8

)

Amortization of transition assets, net

 

(*

)

(0.4

)

Amortization of net actuarial loss

 

(0.7

)

(*

)

Amortization of prior services cost

 

0.1

 

0.1

 

Net periodic benefit cost

 

$

(0.1

)

$

0.5

 

 


(*) amount is lower than $0.1 million

 

Minera Mexico Post-retirement Health Care Plan

 

The components of the net periodic cost for the nine months ended September 30, 2010 and 2009 are as follows (in millions):

 

 

 

2010

 

2009

 

 

 

 

 

 

 

Interest cost

 

$

3.2

 

$

2.9

 

Service cost

 

0.3

 

0.4

 

Amortization of net loss (gain)

 

0.1

 

0.4

 

Amortization of transition obligation

 

1.0

 

0.9

 

Net periodic benefit cost

 

$

4.6

 

$

4.6

 

 


(*) amount is lower than $0.1 million

 

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L.              Comprehensive Income (in millions):

 

 

 

Three months ended
September 30,

 

Nine months ended
September 30,

 

 

 

2010

 

2009

 

2010

 

2009

 

Net income

 

$

367.2

 

$

314.2

 

$

1,067.7

 

$

569.5

 

Other comprehensive income (loss) net of tax:

 

 

 

 

 

 

 

 

 

Decrease in liability for employee benefit obligation

 

 

0.3

 

 

0.3

 

Comprehensive income

 

367.2

 

314.5

 

1,067.7

 

569.8

 

Comprehensive income attributable to the non-controlling interest

 

2.0

 

1.8

 

5.9

 

3.4

 

Comprehensive income attributable to SCC

 

$

365.2

 

$

312.7

 

$

1,061.8

 

$

566.4

 

 

M.         Commitments and Contingencies:

 

Environmental matters:

 

The Company has instituted extensive environmental conservation programs at its mining facilities in Peru and Mexico.  The Company’s environmental programs include, among other features, water recovery systems to conserve water and minimize impact on nearby streams, reforestation programs to stabilize the surface of the tailings dams and the implementation of scrubbing technology in the mines to reduce dust emissions.

 

Environmental capital expenditures in the nine months ended September 30, 2010 and 2009 were as follows (in millions):

 

 

 

2010

 

2009

 

Peruvian operations

 

$

3.2

 

$

1.4

 

Mexican operations

 

7.5

 

18.5

 

Total

 

$

10.7

 

$

19.9

 

 

Peruvian operations

 

The Company’s operations are subject to applicable Peruvian environmental laws and regulations.  The Peruvian government, through the Environmental Ministry conducts annual audits of the Company’s Peruvian mining and metallurgical operations.  Through these environmental audits, matters related to environmental commitments, compliance with legal requirements, atmospheric emissions, and effluent monitoring are reviewed.  The Company believes that it is in material compliance with applicable Peruvian environmental laws and regulations.

 

In 2003 the Peruvian congress published a law announcing future closure and remediation obligations for the mining industry.  In accordance with the requirements of this law the Company’s closure plans were approved by the MINEM.  As part of the closure plans, the Company is providing guarantees to ensure that sufficient funds will be available for the asset retirement obligation.  See Note H, “Asset retirement obligation”, for further discussion of this matter.

 

Mexican operations

 

The Company’s operations are subject to applicable Mexican federal, state and municipal environmental laws, to Mexican official standards, and to regulations for the protection of the environment, including regulations relating to water supply, water quality, air quality, noise levels and hazardous and solid waste.

 

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The principal legislation applicable to the Company’s Mexican operations is the Federal General Law of Ecological Balance and Environmental Protection, which is enforced by the Federal Bureau of Environmental Protection (“PROFEPA”).  PROFEPA monitors compliance with environmental legislation and enforces Mexican environmental laws, regulations and official standards.  PROFEPA may initiate administrative proceedings against companies that violate environmental laws, which in the most extreme cases may result in the temporary or permanent closing of non-complying facilities, the revocation of operating licenses and/or other sanctions or fines.  Also, according to the federal criminal code, PROFEPA must inform corresponding authorities regarding environmental non-compliance.

 

Mexican environmental regulations have become increasingly stringent in recent years, and this trend is likely to continue and has been influenced by the environmental treaty entered into by Mexico, the United States and Canada in connection with NAFTA in 1999.  However, the Company’s management does not believe that continued compliance with the federal environmental law or Mexican state environmental laws will have a material adverse effect on the Company’s business, properties, results of operations, financial condition or prospects or will result in material capital expenditures.  Although the Company believes that all of its facilities are in material compliance with applicable environmental, mining and other laws and regulations, the Company cannot assure that future laws and regulations would not have a material adverse effect on the Company’s business, properties, results of operations, financial condition or prospects.

 

On March 16, 2010, the Company announced to the Mexican Federal Environmental authorities the closure of the copper smelter plant at San Luis Potosi.  There is a general obligation to remediate the site, and we are currently performing an analysis and evaluation of the property in order to establish the cost of such remediation. We expect to determine it in the fourth quarter of this year and to submit it for approval by the Mexican environmental authorities.

 

Litigation matters:

 

Peruvian operations

 

Garcia Ataucuri and Others against SCC’s Peruvian Branch (“SCC’s Peruvian Branch”, “Branch,” or “Peruvian Branch”):

 

In April 1996, the Branch was served with a complaint filed in Peru by approximately 800 former employees seeking the delivery of a substantial number of its “labor shares” (acciones laborales) plus dividends on such shares, to be issued in a proportional way to each former employee in accordance with their time of employment with SCC’s Peruvian Branch.

 

The labor share litigation is based on claims of former employees for ownership of labor shares issued during the 1970s until 1979 under a former Peruvian mandated profit sharing system.  In 1971, the Peruvian government enacted legislation providing that mining workers would have a 10% participation in the pre-tax profits of their employing enterprises.  This participation was distributed 40% in cash and 60% in an equity interest of the enterprise.  In 1978 the equity portion, which was originally delivered to the mining industry organization, was set at 5.5% of pre-tax profits and was delivered in the form of “labor shares” to individual workers.  The cash portion was set at 4.0% of pre-tax earnings and continued to be delivered to individual employees.  In 1992 the workers’ participation was set at 8%, with 100% payable in cash and the equity participation was eliminated from the law.

 

In 1995, the labor shares were exchanged for common stock of the Company and approximately 80.8% of the issued labor shares were exchanged.  After that, from time to time the Company has purchased labor shares on the open market.  The remaining net

 

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0.71% is included on the consolidated balance sheet under the caption “Non-controlling interest.”

 

In relation to the issuance of “labor shares” by the Branch in Peru, the Branch is a defendant in the following lawsuits:

 

1)              The Garcia Ataucuri litigation seeks the delivery of 38,763,806.80 “labor shares” (acciones laborales), now “investment shares” (acciones de inversion) (or nuevos soles (“S/.”) 3,876,380,679.56), plus dividends on such shares.  After lengthy proceedings before the civil courts in Peru on September 19, 2001, on appeal from the Branch, the Peruvian Supreme Court annulled the proceedings noting that the civil courts lacked jurisdiction and that the matter had to be decided by a labor court.

 

In October 2007, in a separate proceeding initiated by the plaintiffs, the Peruvian Constitutional Court nullified the September 19, 2001 Peruvian Supreme Court decision and ordered the Supreme Court to decide again on the merits of the case accepting or denying the Branch’s 2000 appeal.

 

In May 2009, the Supreme Court rejected the 2000 appeal of the Branch affirming the adverse decision of the appellate civil court and lower civil court.  While the Supreme Court has ordered SCC’s Peruvian Branch to deliver the labor shares and dividends, it has clearly stated that SCC’s Peruvian Branch may prove, by all legal means, its assertion that the labor shares and dividends were distributed to the former employees in accordance with the profit sharing law then in effect, an assertion which SCC’s Peruvian Branch continues to make.

 

On June 9, 2009 SCC’s Peruvian Branch filed an extraordinary appeal before a civil court in Peru seeking the nullity of the 2009 Supreme Court decision and other protective measures.  The civil court has now rendered a favorable decision suspending the enforcement of the Supreme Court decision, for the reasons indicated above and other reasons.  In view of this, and the recent civil court decision, SCC´s Peruvian Branch continues to analyze the manner in which the Supreme Court decision may be enforced and what financial impact, if any, said decision may have.

 

2)              The May 10, 2006 Cornejo Flores and others vs. SCC’s Peruvian Branch litigation, seeks the same number of labor shares as in the Garcia Ataucuri case, plus interest, labor shares resulting from capital increases made by the Branch in 1980 “for the amount of the workers’ participation of S/.17,246,009,907.20, equivalent to 172,460,099.72 labor shares,” and dividends.  On May 23, 2006, the Branch answered this new complaint denying the validity of the claim.  As of September 30, 2010 the case remains open with no new developments.

 

3)              The June 27, 2008 Alejandro Zapata Mamani and others vs. SCC’s Peruvian Branch litigation seeks the same number of labor shares as in the Garcia Ataucuri case, plus interest, labor shares resulting from capital increases and dividends.  The Branch answered this new complaint, denying the validity of the claim.  As of September 30, 2010 the case remains open with no new developments.

 

4)              The January 2009 Arenas Rodriguez and others —represented by Mr. Cornejo Flores- vs. SCC’s Peruvian Branch litigation seeks the same number of labor shares as in the Garcia Ataucuri case, plus interest, labor shares resulting from capital increases and dividends.  The Branch answered this complaint, denying the validity of the claim.  In August 2010 the Civil Court dismissed the case due to procedural defects.  The plaintiffs appealed the Civil Court’s resolution before the Superior Court.  This appeal is pending resolution.

 

5)              The June 2010 Macedo Condori vs. SCC’s Peruvian Branch litigation seeks the delivery of 8,012 labor shares plus dividends in the amount of S/.496,744 (as of

 

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May 2010) and interest.  The Branch answered this new complaint, denying the validity of the claim.  In July, 2010 the Civil Court dismissed the case due to procedural defects.  This case is now closed.

 

The Company asserts that the labor shares were distributed to the former employees in accordance with the profit sharing law then in effect.  The Company has not made a provision for these lawsuits because it believes that it has meritorious defenses to the claims asserted in the complaints.  Additionally, the amount of this contingency cannot be reasonably estimated by management at this time.

 

Exploraciones de Concesiones Metalicas S.A.C.:

 

In August 2009 a lawsuit was filed against SCC’s Branch by the former stockholders of Exploraciones de Concesiones Metalicas S.A.C. (“Excomet”).  The plaintiffs allege that the acquisition of their shares in Excomet by the Branch is null and void because the $2 million purchase price paid by the Branch for the shares of Excomet was not fairly negotiated by the plaintiffs and the Branch.  In 2005, the Branch acquired the shares of Excomet after lengthy negotiations with the plaintiffs, and after the plaintiffs, which were all of the stockholders of Excomet, approved the transaction in a general stockholders’ meeting.  Excomet was at the time owner of a mining concession which forms part of the Tia Maria project

 

Sociedad Minera de Responsabilidad Limitada Virgen Maria de Arequipa (SMRL Virgen Maria):

 

In August 2010 a lawsuit was filed against SCC’s Branch and others by SMRL Virgen Maria, a company which until July 2003 owned the mining concession Virgen Maria, which forms part of the Tia Maria project.  SMRL Virgen Maria sold this mining concession in July 2003 to Excomet (see above noted case).

 

The plaintiff alleges that the sale of the mining concession Virgen Maria to Excomet is null and void because the persons who attended the shareholders meeting of SMRL Virgen Maria, at which the purchase was agreed upon, were not the real owners of the shares.  The plaintiff is also pursuing the nullity of all the subsequent acts regarding the mining property (acquisition of the shares of Excomet by SCC’s Branch, noted above, and the sale of the concession to SCC’s Branch by Excomet).

 

The Company asserts that the lawsuits are without merit and is vigorously defending against these lawsuits.

 

Mexican Operations

 

Pasta de Conchos Accident:

 

On February 19, 2010 three widows of miners, who perished in the 2006 Pasta de Conchos accident, filed a complaint for damages in the United States District Court for the District of Arizona against the defendants, Grupo México, Americas Mining Corporation and Southern Copper Corporation.  The plaintiffs allege that the defendants’ purported failure to maintain a safe working environment at the mine amounted to a violation of several laws and treaties.  The Company considers that the court does not have subject-matter jurisdiction over the plaintiffs’ claims and will defend itself vigorously.  On June 25, 2010 the Company filed a motion to dismiss the plaintiffs’ complaint.  At September 30, 2010 this motion is pending.

 

Labor matters:

 

In recent years the Company has experienced a number of strikes or other labor disruptions that have had an adverse impact on its operations and operating results.

 

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Peruvian Operations

 

Approximately 60% of the Company’s Peruvian labor force was unionized at September 30, 2010, represented by eight separate unions.  Three of these unions, one at each major production area, represent the majority of the Company’s workers.  On September 30, 2010, the Company reached a new three year collective bargaining agreement with these three unions.  This agreement includes, among other things, a 5% annual salary increase and a signing bonus of approximately $6,700 for each of the workers (approximately 2,000).  In addition, the agreement provides for productivity savings and includes no-strike clauses.  Additionally, there are five smaller unions, representing the balance of workers.  Collective bargaining agreements for this group are in force through November 2012.

 

During 2010 and 2009 there were no strikes at the Company’s Peruvian operations.

 

Mexican operations

 

Approximately 74% of the Mexican labor force was unionized at September 30, 2010, represented by two separate unions.  Under Mexican law, the terms of employment for unionized workers is set forth in collective bargaining agreements.  Mexican companies negotiate the salary provisions of collective bargaining agreements with the labor unions annually and negotiate other benefits every two years.  The Company conducts negotiations separately at each mining complex and each processing plant.

 

On March 20, 2009 the Company notified the Mexican federal labor court of the termination of all the individual labor contracts of the Cananea workers, including the collective bargaining agreement with the union.  This decision was based upon a finding by the Mexican mining authorities that confirmed that the Cananea mine was in a force majeure situation since it was unable to operate due to severe damages caused by striking workers.  On April 14, 2009, the Mexican federal labor court issued a resolution approving the termination of Cananea’s labor relationships with individual and unionized employees, as well as the termination of its collective bargaining agreement with its employees and with the National Mining and Metal Workers Union.  This ruling was challenged before federal tribunals.  Most of the individual challenges by unionized workers have been resolved by a federal judge who dismissed their complaints.

 

On February 11, 2010, a Mexican federal district court confirmed that the damages caused to the Cananea mine by the neglect and sabotage of striking workers since the commencement of labor stoppages and strikes in July 2007 resulted in force majeure providing legal basis for the termination of individual and unionized employees by the Company’s subsidiary, Mexicana de Cananea, S.A. de C.V.  A workers’ appeal was dismissed on April 21, 2010 by the Mexican Supreme Court.  Local and federal authorities in Mexico regained access to, and control of, the Cananea mine.  On June 6, 2010 the Company commenced the necessary evaluations to assess the magnitude of the significant damages to the plant, machinery and equipment caused by the strike that commenced in July 2007.  The Company has already started the rehabilitation and reconstruction of the Cananea mine, with a team of approximately 3,400 individuals, composed of Company workers and contractors personnel.  The estimated cost of repairing the damages to the property is $114 million.  Losses arising from damages to the fixed assets, net of estimated insurance recoveries, are not material.

 

Additionally, the San Martin and Taxco mines have been on strike since July 2007.  On December 10, 2009 a federal tribunal confirmed the legality of the San Martin strike.  In the case of the Taxco mine, following the workers refusal to allow exploration of new reserves, the Company commenced litigation seeking to terminate the labor relationship with workers of the Taxco mine (including the related collective bargaining agreement).  On September 1, 2010, the federal labor court issued a ruling approving the termination of the collective bargaining agreement and

 

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all the individual labor contracts of the workers affiliated with the Mexican Mining Union at the Taxco mine.  The ruling was based upon the resistance of the mining union to allow mining experts to search for reserves at the Taxco mine.  If sustained, this ruling will also have the effect of terminating the protracted strike at the Taxco Unit.  The mining union has presented an appeal of the labor court ruling before federal tribunals.

 

In 2009, more than 40% of the workers of the San Martin mine and 50% of the workers of the Taxco mine voluntarily requested severance payments and terminated their labor relationship with the Company.

 

In the third quarter of 2010 operations at the La Caridad metallurgical complex were disrupted due to access road blockages established by a group of terminated workers and other agitators. However, in October 2010, with the assistance of the Mexican authorities, order was restored and normal operations were restarted. La Caridad’s mining operations continued during the blockage period and as a result the Company was able to maintain output.

 

Other legal matters:

 

Class actions:

 

Three purported class action derivative lawsuits have been filed in the Delaware Court of Chancery (New Castle County) late in December 2004 and early January 2005 relating to the acquisition of Minera Mexico by SCC.  On January 31, 2005, the three actions Lemon Bay, LLP v. Americas Mining Corporation, et al., Civil Action No. 961-N, Therault Trust v. Luis Palomino Bonilla, et al., and Southern Copper Corporation, et al., Civil Action No. 969-N, and James Sousa v. Southern Copper Corporation, et al., Civil Action No. 978-N were consolidated into one action titled, In re Southern Copper Corporation Shareholder Derivative Litigation, Consol.  Civil Action No. 961-N and the complaint filed in Lemon Bay was designated as the operative complaint in the consolidated lawsuit.  The consolidated action purports to be brought on behalf of the Company’s common stockholders.

 

The consolidated complaint alleges, among other things, that the acquisition of Minera Mexico is the result of breaches of fiduciary duties by the Company’s directors and is not entirely fair to the Company and its minority stockholders.  The consolidated complaint seeks, among other things, a preliminary and permanent injunction to enjoin the acquisition, the award of damages to the class, the award of damages to the Company and such other relief that the court deems equitable, including interest, attorneys’ and experts’ fees and costs.  The defendants believe that this lawsuit is without merit and are vigorously defending against the action.

 

Four purported class action derivative lawsuits have been filed in the Delaware Court of Chancery (Oklahoma Firefighters Pension & Retirement System et al. v. SCC et al., Gary Martin et al. v. SCC et al., Thomas Griffin et al. v. SCC et al., and Sheet Metal Workers Pension Plan of Northern California et al. v. SCC et al.) and one in the Superior Court of Arizona, in and for the County of Maricopa, (The City of North Miami Beach Police Officers’ and Firefighters’ Retirement Plan et al. v. SCC et al.) from August to October 2010 relating to the proposed combination of the Company with AMC, the parent company of Asarco.  The complaints name SCC, its current and certain former directors, AMC and Grupo Mexico as defendants.  Two of the actions also name Asarco as a defendant.  The actions purport to be brought on behalf of the Company’s common stockholders.

 

The complaints allege, among other things, that the proposed transaction would result in breaches of fiduciary duties by the defendants and is not entirely fair to the Company and its minority stockholders.  The complaints seek, among other things, a preliminary and permanent injunction to enjoin the transaction, the award

 

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of damages to the plaintiffs and the class, and such other relief that the court deems equitable, including interest, attorneys’ and experts’ fees and costs.  The defendants believe that these lawsuits are without merit and are vigorously defending against the actions.

 

The Company is involved in various other legal proceedings incidental to its operations, but the Company does not believe that decisions adverse to it in any such proceedings, individually or in the aggregate, would have a material adverse effect on its financial position or results of operations.  Additionally, the Company does not believe that the outcome of the purported class action derivative lawsuits would have a material adverse effect on its financial position or results of operations.

 

Other commitments:

 

Regional development contribution:

 

In 2006, the Company’s Peruvian Branch signed a contract with the Peruvian government committing the Company to make annual contributions for five years, through 2010, to support the regional development of Peru based on prior year’s net earnings.  This was in response to an appeal by the president of Peru to the mining industry.  The contributions are being used for social benefit programs.  This agreement requires a final contribution against 2010 profits.  The Company believes that this contribution could be extended to continue the flow of funds to the government.

 

These contributions were deposited with a separate entity, Asociacion Civil Ayuda del Cobre, which will make disbursements for approved investments in accordance with the agreement until the five year contributions are fully used.  The commitment of the Branch is for a total of 1.25% of its annual earnings, after Peruvian income tax.  If the average annual LME copper price is below $1.79 per pound the contribution will cease.

 

The Company made provisions for this contribution in the nine months ended September 30, 2010 and 2009, as follows (in millions):

 

 

 

2010

 

2009

 

Regional development contribution

 

$

9.4

 

$

5.0

 

 

These provisions are included in “Other income (expense)” in the condensed consolidated statement of earnings.

 

Royalty charge

 

In June 2004, the Peruvian Congress enacted legislation imposing a royalty charge to be paid by mining companies.  Under this law, the Company is subject to a 1% to 3% royalty, based on sales, applicable to the value of the concentrates produced at the Toquepala and Cuajone mines.  The Company made provisions for this charge in the nine months ended September 30, 2010 and 2009, as follows (in millions):

 

 

 

2010

 

2009

 

Royalty charge

 

$

44.1

 

$

28.6

 

 

These provisions are included in “Cost of sales (exclusive of depreciation, amortization and depletion)” in the condensed consolidated statement of earnings.

 

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Power purchase agreement

 

In 1997, SCC sold its Ilo power plant to an independent power company, Enersur S.A. (“Enersur”).  In connection with the sale, a power purchase agreement was also completed under which SCC agreed to purchase all of its power needs for its Peruvian operations from Enersur for twenty years, commencing in 1997.  In 2003 the agreement was amended, releasing Enersur from its obligation to construct additional capacity to meet the Company’s increased electricity requirements and changing the power tariff as called for in the original agreement.

 

The Company has recently signed a Memorandum of Understanding (“MOU”) with Enersur regarding its power supply agreement.  The MOU contains new economic terms that the Company believes better reflect current economic conditions in the power industry and in Peru.  The Company expects to obtain savings in its future power costs.  The new economic conditions agreed to in the MOU have been applied by Enersur to its invoices to the Company since May 2009.  Additionally, the MOU includes an option for providing power for the Tia Maria project.

 

Tax contingency matters:

 

Tax contingencies are provided for under ASC 740-10-50-15 Uncertain tax position (see Note E, “Income taxes”).

 

N.            Segment and Related Information:

 

Company management views Southern Copper as having three operating segments and manages on the basis of these segments.  The segments identified by the Company are: the Peruvian operations, the Mexican open pit operations and the Mexican underground mining operations segment identified as the IMMSA unit.

 

Financial information is regularly prepared for each of the three segments and the results of the Company’s operations are regularly reported to the Chief Operating Officer on the segment basis.  The Chief Operating Officer of the Company focuses on operating income and on total assets as measures of performance to evaluate different segments and to make decisions to allocate resources to the reported segments.  These are common measures in the mining industry.

 

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Financial information relating to Southern Copper’s segments is as follows:

 

Three Months Ended September 30, 2010

(in millions)

 

 

 

Mexican
Open Pit

 

Mexican
IMMSA
Unit

 

Peruvian
Operations

 

Corporate,
other and
eliminations

 

Consolidated

 

 

 

 

 

 

 

 

 

 

 

 

 

Net sales outside of segments

 

$

430.6

 

$

77.7

 

$

749.6

 

$

 

$

1,257.9

 

Intersegment sales

 

 

 

22.7

 

 

 

(22.7

)

 

 

Cost of sales (exclusive of depreciation, amortization and depletion)

 

204.6

 

64.0

 

295.3

 

(21.4

)

542.5

 

Selling, general and administrative

 

7.6

 

3.2

 

9.8

 

0.7

 

21.3

 

Depreciation, amortization and depletion

 

40.7

 

5.6

 

34.4

 

1.6

 

82.3

 

Exploration

 

1.5

 

3.8

 

3.6

 

 

8.9

 

Operating income

 

$

176.2

 

$

23.8

 

$

406.5

 

$

(3.6

)

602.9

 

Less:

 

 

 

 

 

 

 

 

 

 

 

Interest, net

 

 

 

 

 

 

 

 

 

(47.8

)

Other income (expense)

 

 

 

 

 

 

 

 

 

(9.2

)

Income taxes

 

 

 

 

 

 

 

 

 

(178.7

)

Non-controlling interest

 

 

 

 

 

 

 

 

 

(2.0

)

Net income attributable to SCC

 

 

 

 

 

 

 

 

 

$

365.2

 

 

 

 

 

 

 

 

 

 

 

 

 

Capital expenditure

 

$

29.8

 

$

9.2

 

$

66.6

 

$

7.3

 

$

112.9

 

Property, net

 

$

1,565.3

 

$

280.0

 

$

2,140.5

 

$

56.8

 

$

4,042.6

 

Total assets

 

$

2,351.6

 

$

647.3

 

$

3,013.9

 

$

1,598.6

 

$

7,611.4

 

 

Three Months Ended September 30, 2009

(in millions)

 

 

 

Mexican
Open Pit

 

Mexican
IMMSA
Unit

 

Peruvian
Operations

 

Corporate,
other and
eliminations

 

Consolidated

 

 

 

 

 

 

 

 

 

 

 

 

 

Net sales outside of segments

 

$

315.7

 

$

111.9

 

$

710.8

 

$

13.4

 

$

1,151.8

 

Intersegment sales

 

12.6

 

38.3

 

 

(50.9

)

 

Cost of sales (exclusive of depreciation, amortization and depletion)

 

145.5

 

105.1

 

322.0

 

(42.7

)

529.9

 

Selling, general and administrative

 

7.2

 

3.1

 

12.6

 

0.9

 

23.8

 

Depreciation, amortization and depletion

 

43.3

 

5.9

 

32.7

 

0.4

 

82.3

 

Exploration

 

0.9

 

2.9

 

3.3

 

 

7.1

 

Operating income

 

$

131.4

 

$

33.2

 

$

340.2

 

$

3.9

 

508.7

 

Less:

 

 

 

 

 

 

 

 

 

 

 

Interest, net

 

 

 

 

 

 

 

 

 

(27.5

)

Loss on derivative instruments

 

 

 

 

 

 

 

 

 

 

Other income (expense)

 

 

 

 

 

 

 

 

 

0.8

 

Income taxes

 

 

 

 

 

 

 

 

 

(167.7

)

Non-controlling interest

 

 

 

 

 

 

 

 

 

(1.8

)

Net income attributable to SCC

 

 

 

 

 

 

 

 

 

$

312.5

 

 

 

 

 

 

 

 

 

 

 

 

 

Capital expenditure

 

$

13.7

 

$

3.3

 

$

82.7

 

$

10.9

 

$

110.6

 

Property, net

 

$

1,630.0

 

$

268.7

 

$

1,988.9

 

$

55.3

 

$

3,942.9

 

Total assets

 

$

2,598.9

 

$

568.5

 

$

2,343.1

 

$

166.0

 

$

5,676.5

 

 

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Nine months Ended September 30, 2010

(in millions)

 

 

 

Mexican
Open Pit

 

Mexican
IMMSA
Unit

 

Peruvian
Operations

 

Corporate,
other and
eliminations

 

Consolidated

 

 

 

 

 

 

 

 

 

 

 

 

 

Net sales outside of segments

 

$

1,146.3

 

$

256.4

 

$

2,209.6

 

$

38.2

 

$

3,650.5

 

Intersegment sales

 

29.1

 

110.2

 

 

(139.3

)

 

Cost of sales (exclusive of depreciation, amortization and depletion)

 

547.9

 

234.1

 

881.7

 

(99.7

)

1,564.0

 

Selling, general and administrative

 

22.8

 

9.8

 

29.7

 

2.7

 

65.0

 

Depreciation, amortization and depletion

 

121.7

 

16.9

 

99.9

 

3.5

 

242.0

 

Exploration

 

3.8

 

10.9

 

12.7

 

 

27.4

 

Operating income

 

$

479.2

 

$

94.9

 

$

1,185.6

 

$

(7.6

)

1,752.1

 

Less:

 

 

 

 

 

 

 

 

 

 

 

Interest, net

 

 

 

 

 

 

 

 

 

(113.3

)

Other income (expense)

 

 

 

 

 

 

 

 

 

(14.2

)

Income taxes

 

 

 

 

 

 

 

 

 

(556.9

)

Non-controlling interest

 

 

 

 

 

 

 

 

 

(5.9

)

Net income attributable to SCC

 

 

 

 

 

 

 

 

 

$

1,061.8

 

 

 

 

 

 

 

 

 

 

 

 

 

Capital expenditure

 

$

52.7

 

$

19.4

 

$

201.1

 

$

8.0

 

$

281.2

 

Property, net

 

$

1,565.3

 

$

280.0

 

$

2,140.5

 

$

56.8

 

$

4,042.6

 

Total assets

 

$

2,351.6

 

$

647.3

 

$

3,013.9

 

$

1,598.6

 

$

7,611.4

 

 

Nine months Ended September 30, 2009

(in millions)

 

 

 

Mexican
Open Pit

 

Mexican
IMMSA
Unit

 

Peruvian
Operations

 

Corporate,
other and
eliminations

 

Consolidated

 

 

 

 

 

 

 

 

 

 

 

 

 

Net sales outside of segments

 

$

737.0

 

$

289.6

 

$

1,532.9

 

$

38.8

 

$

2,598.3

 

Intersegment sales

 

26.8

 

99.0

 

 

(125.8

)

 

Cost of sales (exclusive of depreciation, amortization and depletion)

 

397.7

 

281.5

 

738.4

 

(92.7

)

1,324.9

 

Selling, general and administrative

 

21.3

 

9.3

 

27.0

 

3.1

 

60.7

 

Depreciation, amortization and depletion

 

126.4

 

17.8

 

93.8

 

1.2

 

239.2

 

Exploration

 

1.7

 

5.2

 

10.6

 

 

17.5

 

Operating income

 

$

216.7

 

$

74.8

 

$

663.1

 

$

1.4

 

956.0

 

Less:

 

 

 

 

 

 

 

 

 

 

 

Interest, net

 

 

 

 

 

 

 

 

 

(66.2

)

Gain on derivative instruments

 

 

 

 

 

 

 

 

 

4.2

 

Other income (expense)

 

 

 

 

 

 

 

 

 

2.6

 

Income taxes

 

 

 

 

 

 

 

 

 

(327.1

)

Non-controlling interest

 

 

 

 

 

 

 

 

 

(3.4

)

Net income attributable to SCC

 

 

 

 

 

 

 

 

 

$

566.1

 

 

 

 

 

 

 

 

 

 

 

 

 

Capital expenditure

 

$

55.8

 

$

17.9

 

$

220.9

 

$

22.1

 

$

316.7

 

Property, net

 

$

1,630.0

 

$

268.7

 

$

1,988.9

 

$

55.3

 

$

3,942.9

 

Total assets

 

$

2,598.9

 

$

568.5

 

$

2,343.1

 

$

166.0

 

$

5,676.5

 

 

O.            Impact of New Accounting Standards:

 

Please see impact of the adoption of new accounting standards on note B “Adoption of New Accounting Standards”

 

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P.              Stockholders’ Equity:

 

Treasury Stock:

 

Activity in treasury stock in the nine-month period ended September 30, 2010 and 2009 is as follows (in millions):

 

 

 

2010

 

2009

 

Southern Copper common shares

 

 

 

 

 

Balance as of January 1,

 

$

460.7

 

$

389.0

 

Purchase of shares

 

0.4

 

71.9

 

Used for corporate purposes

 

(0.2

)

(0.2

)

Balance as of September 30,

 

460.9

 

460.7

 

 

 

 

 

 

 

Parent Company (Grupo Mexico) common shares

 

 

 

 

 

Balance as of January 1,

 

142.7

 

125.5

 

Other activity, including dividend, interest and currency translation effect

 

14.4

 

11.0

 

Balance as of September 30,

 

157.1

 

136.5

 

 

 

 

 

 

 

Treasury stock balance as of September 30,

 

$

618.0

 

$

597.2

 

 

The following table summarizes share distributions in the nine months ended September 30, 2010 and 2009:

 

 

 

2010

 

2009

 

Southern Copper common shares

 

 

 

 

 

Directors’ Stock Award Plan

 

14,400

 

12,000

 

 

 

 

 

 

 

Parent Company (Grupo Mexico) common shares

 

 

 

 

 

Employee stock purchase plan (shares in millions)

 

10.9

 

11.8

 

 

SCC share repurchase program:

 

In 2008 the Company’s Board of Directors authorized a $500 million share repurchase program.  Under this program the Company may purchase additional shares from time to time, based on market conditions and other factors.  This repurchase program has no expiration date and may be modified or discontinued at any time.  These shares will be available for general corporate purposes.

 

The following table summarizes the repurchase program activity since its inception in 2008:

 

Period

 

Total Number
of Shares

 

Average
Price
Paid
per

 

Total Number
of Shares
Purchased as
Part of
Publicly

 

Maximum
Number of
Shares that
may yet be
Purchased
Under the

 

Total
Cost
($ in

 

From

 

To

 

Purchased

 

Share

 

Announced Plan

 

Plan @ $35.12

 

millions)

 

2008:

 

 

 

 

 

 

 

 

 

 

 

 

 

08/11/08

 

12/31/08

 

28,510,150

 

$

13.49

 

28,510,150

 

 

 

$

384.6

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2009:

 

 

 

 

 

 

 

 

 

 

 

71.9

 

01/12/09

 

09/30/09

 

4,912,000

 

14.64

 

33,422,150

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2010:

 

 

 

 

 

 

 

 

 

 

 

 

 

05/05/10

 

05/05/10

 

13,200

 

28.75

 

33,435,350

 

 

 

0.4

 

08/12/10

 

08/12/10

 

1,200

 

29.33

 

33,436,500

 

 

 

0.1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total Purchased

 

33,436,550

 

$

13.67

 

 

 

1,225,120

 

$

457.0

 

 

At September 30, 2010, as a result of the purchases of SCC common shares and AMC’s purchases of SCC shares, Grupo Mexico’s direct and indirect ownership of SCC is 80%.

 

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Directors’ Stock Award Plan:

 

The Company established a stock award compensation plan for certain directors who are not compensated as employees of the Company.  Under this plan, participants will receive 1,200 shares of common stock upon election and 1,200 additional shares following each annual meeting of stockholders thereafter. 600,000 shares of Southern Copper common stock have been reserved for this plan.  The fair value of the award is measured each year at the date of the grant.

 

The activity of the plan in the nine-month period ended September 30, 2010 and 2009 is as follows:

 

 

 

2010

 

2009

 

 

 

 

 

 

 

Total SCC shares reserved for the plan

 

600,000

 

600,000

 

 

 

 

 

 

 

Total shares granted at January 1,

 

(241,200

)

(229,200

)

Granted in the period

 

(14,400

)

(12,000

)

Total shares granted at September 30,

 

(255,600

)

(241,200

)

 

 

 

 

 

 

Remaining shares reserved

 

344,400

 

358,800

 

 

Employee Stock Purchase Plan:

 

In January 2007, the Company offered to eligible employees a stock purchase plan (the “Employee Stock Purchase Plan”) through a trust that acquires shares of Grupo Mexico stock for sale to its employees, and employees of subsidiaries, and certain affiliated companies.  The purchase price is established at the approximate fair market value on the grant date.  Every two years employees will be able to acquire title to 50% of the shares paid in the previous two years.  The employees will pay for shares purchased through monthly payroll deductions over the eight year period of the plan.  At the end of the eight year period, the Company will grant the participant a bonus of 1 share for every 10 shares purchased by the employee.

 

If Grupo Mexico pays dividends on shares during the eight year period, the participants will be entitled to receive the dividend in cash for all shares that have been fully purchased and paid as of the date that the dividend is paid.  If the participant has only partially paid for shares, the entitled dividends will be used to reduce the remaining liability owed for purchased shares.

 

In the case of voluntary resignation of the employee, the Company will pay to the employee the purchase price applying a deduction over the amount to be paid to the employee based on the following schedule.