SOUTHERN COPPER CORP/ - Quarter Report: 2009 March (Form 10-Q)

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

 

 

 

Commission File Number: 1-14066

 

SOUTHERN COPPER CORPORATION

(Exact name of registrant as specified in its charter)

 

 

(602) 494-5328

Registrant’s telephone number, including area code

 

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 Web site, 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 o 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.

 

 

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 April 30, 2009 there were outstanding 850 million shares of Southern Copper Corporation common stock, par value $0.01 per share.

 

 

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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 months ended March 31, 2009 and 2008	3
	Condensed Consolidated Balance Sheet March 31, 2009 and December 31, 2008	4
	Condensed Consolidated Statement of Cash Flows for the three months ended March 31, 2009 and 2008	5
	Notes to Condensed Consolidated Financial Statements	6-30
Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	31-44
Item 3.	Quantitative and Qualitative Disclosure about Market Risk	45-48
Item 4.	Controls and Procedures	49
Report of Independent Registered Public Accounting Firm		50
Part II. Other Information:
Item 1.	Legal Proceedings	51
Item 1A.	Risk factors	51-52
Item 4.	Submission of Matters to a Vote of Security Holders	53
Item 6.	Exhibits	54
	Signatures	55
	List of Exhibits	56
Exhibit 15	Independent Accountants’ Awareness Letter	57
Exhibit 31.1	Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002	58-59
Exhibit 31.2	Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002	60-61
Exhibit 32.1	Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002	62
Exhibit 32.2	Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002	63

 

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Part I — FINANCIAL INFORMATION

 

Item 1.  Condensed Consolidated Financial Statements

 

Southern Copper Corporation

 

CONDENSED CONSOLIDATED STATEMENT OF EARNINGS

(Unaudited)

 

		3 Months Ended
		March 31,
		2009			2008
		(in thousands)
Net sales		$	621,998		$	1,499,206
Operating costs and expenses:
Cost of sales (exclusive of depreciation, amortization and depletion shown separately below)		375,455			520,589
Selling, general and administrative		18,792			24,655
Depreciation, amortization and depletion		78,221			81,196
Exploration		5,402			8,056
Total operating costs and expenses		477,870			634,496
Operating income		144,128			864,710
Interest expense		(24,183		)	(27,235		)
Capitalized interest		2,075			1,088
(Loss) gain on derivative instruments		(2,604		)	2,408
Other income (expense)		2,657			(4,674		)
Interest income		5,198			17,415
Income before income taxes		127,271			853,712
Income taxes		48,025			286,022
Net income		79,246			567,690
Less: Net income attributable to the non-controlling interest		554			2,707
Net income attributable to Southern Copper Corporation		$	78,692		$	564,983
Earnings per share — basic and diluted:
Net income attributable to SCC basic and diluted		$	0.09		$	0.64
Dividend paid to SCC common shareholders		$	0.12		$	0.47
Weighted average common shares outstanding (basic and diluted)		852,772			883,397

 

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

 

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Southern Copper Corporation

 

CONDENSED CONSOLIDATED BALANCE SHEET

(Unaudited)

 

		March 31			December 31,
		2009			2008
		(in thousands)
ASSETS
Current assets:
Cash and cash equivalents		$	291,275		$	716,740
Short-term investments		50,981			62,376
Accounts receivable trade, less allowance for doubtful accounts (2009 - $4,805; 2008 - $4,811)		168,038			104,149
Accounts receivable other (including affiliates 2009 — $1,664; 2008 - $1,925)		70,626			29,439
Inventories		449,291			451,597
Deferred income tax		22,192			64,711
Other current assets		133,801			124,681
Total current assets		1,186,204			1,553,693
Property, net		3,804,119			3,803,764
Leachable material, net		144,036			156,294
Intangible assets, net		113,619			114,056
Deferred income tax		59,246			83,106
Other assets		56,942			53,411
Total assets		$	5,364,166		$	5,764,324
LIABILITIES
Current liabilities:
Current portion of long-term debt		$	10,000		$	10,000
Accounts payable		313,562			413,351
Accrued income taxes		19,227			34,378
Due to affiliated companies		9,760			8,965
Accrued workers’ participation		81,701			205,466
Interest		20,126			40,968
Other accrued liabilities		31,326			24,335
Total current liabilities		485,702			737,463
Long-term debt		1,280,042			1,279,972
Deferred income taxes		116,180			169,342
Non-current taxes payable		71,140			70,266
Other liabilities and reserves		87,777			93,875
Asset retirement obligation		18,215			18,007
Total non-current liabilities		1,573,354			1,631,462
Commitments and Contingencies (Note L)
STOCKHOLDERS’ EQUITY
Common stock		8,846			8,846
Additional paid-in capital		994,069			993,826
Retained earnings		2,895,655			2,916,517
Accumulated other comprehensive loss		(22,174		)	(23,477		)
Treasury stock		(585,733		)	(514,453		)
Total SCC stockholders’ equity		3,290,663			3,381,259
Non-controlling interest		14,447			14,140
Total equity		3,305,110			3,395,399
Total liabilities and equity		$	5,364,166		$	5,764,324

 

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 March 31,
		2009			2008
		(in thousands)
OPERATING ACTIVITIES
Net income attributable to SCC		$	78,692		$	564,983
Adjustments to reconcile net earnings to net cash provided from operating activities:
Depreciation, amortization and depletion		78,221			81,196
Capitalized leachable material		—			(2,246		)
(Gain) loss on currency translation effect		(1,394		)	18,601
Provision for deferred income taxes		18,927			(38,052		)
(Gain) loss on sale of short-term investment		(707		)	1,693
Unrealized gain on derivative instruments		(25,079		)	(8,237		)
Non-controlling interest		554			2,707
Cash provided from (used for) operating assets and liabilities:
Accounts receivable		(107,336		)	(130,825		)
Inventories		2,306			(7,028		)
Accounts payable and accrued liabilities		(250,462		)	21,850
Other operating assets and liabilities		11,994			(3,444		)
Net cash (used for) provided from operating activities		(194,284		)	501,198
INVESTING ACTIVITIES
Capital expenditures		(62,978		)	(49,894		)
Net proceeds from sale of short-term investments		12,102			7,329
Other		204			(817		)
Net cash used for investing activities		(50,672		)	(43,382		)
FINANCING ACTIVITIES
Dividends paid to common stockholders		(99,555		)	(412,302		)
Distributions to non-controlling interest		—			(3,160		)
Repurchase of common shares		(71,566		)	—
Other		70			61
Net cash used for financing activities		(171,051		)	(415,401		)
Effect of exchange rate changes on cash and cash equivalents		(9,458		)	21,094
Increase (decrease) in cash and cash equivalents		(425,465		)	63,509
Cash and cash equivalents, at beginning of period		716,740			1,409,272
Cash and cash equivalents, at end of period		$	291,275		$	1,472,781
Supplemental disclosure of cash flow information
Cash paid during the period for:
Interest		$	43,954		$	46,330
Income taxes		$	32,806		$	216,194
Workers participation		$	82,742		$	115,830

 

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 March 31, 2009 and the results of operations and cash flows for the three months ended March 31, 2009 and 2008.  The condensed consolidated financial statements for the three months ended March 31, 2009 have been subject to a review by Galaz, Yamazaki, Ruiz Urquiza S.C., a member firm of Deloitte Touche Tohmatsu, the Company’s independent registered public accounting firm, whose report dated May 8, 2009, is presented on page 50.  The results of operations for the three months ended March 31, 2009 and 2008 are not necessarily indicative of the results to be expected for the full year.  The December 31, 2008 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, 2008 and notes included in the Company’s 2008 annual report on Form 10-K.

 

 

B.             Adoption of New Accounting Standards:

 

On January 1, 2009 the Company adopted the following pronouncements of the Financial Accounting Standards Board (“FASB”) pronouncements:

 

On March 19, 2008 the FASB issued SFAS No. 161, “Disclosures about Derivative Instruments and Hedging Activities.”  This new standard improves financial reporting about derivative instruments and hedging activities by requiring enhanced disclosures to enable investors to better understand their effects on an entity’s financial position, financial performance, and cash flows.  The adoption of this statement has not had a material effect on the Company’s financial position and results of operations. See disclosures required in note G, Derivative instruments.

 

In December 2007, the FASB issued SFAS No. 160 “Non-Controlling Interests in Consolidated Financial Statements” — an amendment of ARB No. 51.  This statement addresses the reporting of minority interests, now called “non-controlling interest”, in the results of the parent and provides direction for the recording of such interests in the financial statements.  It also provides guidance for the recording of various transactions related to the non-controlling interest, as well as certain disclosure requirements.  The adoption of this statement caused some changes to the Company’s presentation of financial results and statement of position.  However, these changes are not of a material nature.

 

In December 2007, the FASB published SFAS No. 141-R, which replaces SFAS No. 141, “Business Combinations.”  This statement improves the reporting of information about a business combination and its effects.  This statement establishes principles and requirements for how the acquirer will recognize and measure the identifiable assets acquired, the liabilities assumed, and any non-controlling interest in the acquisition.  Also, the statement determines the recognition and measurement of goodwill acquired in the business combination or a gain from a bargain purchase, and finally, determines the disclosure requirements to enable users of the financial statements to evaluate the nature and financial effects of the business combination.  The Company has adopted this pronouncement and will apply its requirements to future business combinations.

 

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C.             Short-term Investments:

 

The balance of short-term investments was as follows (in millions):

 

		As of
Investments		March 31, 2009			December 31, 2008
Short-term investments in securities issued by public companies with a weighted average interest rate of 1.07% at March 31,2009 and 1.85% at December 31, 2008.		$	51.0		$	62.4

 

Short-term investments in securities consist of available for sale securities issued by public companies.  Each security is independent of the others.

 

In the first quarter of 2009 and 2008, the Company earned interest of $0.3 million and $1.6 million, respectively, related to these investments which were recorded as interest income in the condensed consolidated statement of earnings.  In addition, in the first quarter of 2009 and 2008, the Company redeemed $12.1 million and $5.2 million, respectively, of these investments.

 

In the first quarter of 2009 and 2008 the Company recorded a gain of $0.7 million and a loss of $1.7 million, respectively.  The Company considered these gains/losses other than temporary, and therefore has recorded them as other income (expense) in the condensed consolidated statement of earnings.

 

D.            Inventories were as follows:

 

(in millions)		March 31, 2009			December 31, 2008
Metals at lower of average cost or market:
Finished goods		$	46.7		$	46.7
Work-in-process		141.0			135.8
Supplies at average cost		261.6			269.1
Total inventories		$	449.3		$	451.6

 

E.              Income taxes:

 

The income tax provision for the first quarter of 2009 and 2008 was $48.0 million and $286.0 million, respectively.  These provisions include income taxes for Peru, Mexico and the United States.  The provision for income taxes was based on our effective tax rate of 37.7% for the first three months of 2009 as compared to 33.5% during the same period in 2008.  The increase in the effective tax rate for the first quarter 2009 is largely due to the incremental U.S. tax provided on dividend distributions made by our Mexican subsidiary to the U.S. parent.  This dividend distribution is taxable in the U.S. at the difference between the 35% U.S. statutory rate and the foreign tax credit rate of 28.5%.

 

As of March 27, 2009, 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, SCC will be included in AMC’s consolidated US federal income tax return commencing from March 27, 2009.  AMC is a holding company and most of the business assets and operations of AMC belong to ASARCO LLC and its subsidiaries.  In accordance with paragraph 40 of FAS No. 109, 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

 

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management of US federal income tax matters.  At present, SCC is providing current and deferred 2009 US income taxes, as if it were still a separate filer.  It is believed that taxes provided on this basis will not be materially different from the provision necessary once the Company has reached a tax sharing agreement with AMC.

 

FIN No. 48 — Accounting for Uncertainty in Income Taxes.

 

There were no material changes in the unrecognized tax benefits in the first three months of 2009.  In the United States, the tax years 2003 and 2004 are currently before the appeals division of the IRS.  The tax years 2005, 2006 and 2007 are currently under IRS field examination, which commenced in November 2008.  Management does not expect that any of the open years will result in a cash payment within the preceding twelve months of March 31, 2010.  The Company’s reasonable expectations about future resolutions of uncertain items did not materially change during the quarter ended March 31, 2009.

 

F.              Provisionally Priced Sales:

 

At March 31, 2009, the Company has recorded provisionally priced sales of 26.6 million pounds of copper, at an average forward price of $1.83 per pound.  Also the Company has recorded provisionally priced sales of 10.1 million pounds of molybdenum at the March 31, 2009 market price of $8.13 per pound.  These sales are subject to final pricing based on the average monthly LME or 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 March 31, 2009:

 

Copper (million lbs.)		Priced at		Month of Settlement
24.9		1.83		April 2009
1.1		1.83		May 2009
0.6		1.85		July 2009
26.6		1.83

 

Molybdenum (million lbs.)		Priced at		Month of Settlement
3.0		8.13		April 2009
2.9		8.13		May 2009
3.1		8.13		June 2009
0.8		8.13		July 2009
0.3		8.13		August 2009
10.1		8.13

 

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, interest rate and exchange rate risk exposures and to enhance return on assets.  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.

 

Copper derivatives:

 

From time to time the Company has entered into derivative instruments to protect a fixed copper, or zinc price for a portion of its metal sales.

 

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In the first quarter of 2008, the Company entered into copper collar and swap contracts to protect a portion of its 2008 sales of copper production.  As a result, the Company recorded a gain of $6.4 million in the first quarter of 2008.  This gain was recorded in net sales in the condensed consolidated statement of earnings and in accounts receivable other in the condensed consolidated balance sheet.  The Company did not hold any copper or zinc derivative contracts in the first quarter of 2009.

 

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

 

Because more than 85% of the Company’s sales collections in Mexico are in US dollars and many of its costs are in Mexican pesos, the Company entered into zero-cost derivative contracts with the purpose of protecting, within a range, against an appreciation of the Mexican peso to the US dollar.

 

At March 31, 2009 the Company held exchange rate derivative contracts with the following conditions:

 

If the exchange rate is less than or equal to the strike price, the Company sells US dollars in an amount equal to the underlying amount for the expiration period at the strike price.  The difference between the strike price and the market exchange rate is considered a gain to the Company.  The total accumulated gain over the life of the contract cannot exceed 200 cents per dollar transacted in the first contract and 500 cents per dollar transacted in the second contract.  If the exchange rate is above the strike price, the Company sells dollars in an amount equal to two times the underlying amount for the expiration period at the strike price and the loss does not reduce the accumulated gain.  At March 31, 2009, the Company held the following contracts:

 

Notional Amount (1) (millions)			Underlying amount (millions)			Expiration Period		Due Date		Strike Price (Mexican Pesos/ U.S. Dollars)
$	7.5		$	2.5		Monthly		April 13, 2009 through June 11, 2009		10.59
$	52.5		$	2.5		Weekly		April 3, 2009 through August 21, 2009		10.53

 

(1) Each notional amount includes a group of weekly transactions that have the same strike price.

 

At March 31, 2009, the fair value of the above listed exchange rate derivative contracts is a loss of $31.7 million, of which $29.1 million was included in the 2008 consolidated statement of earnings.

 

Related to the exchange rate derivative contracts the Company recorded a net loss of $2.6 million in the first quarter of 2009 compared with a gain of $2.4 million in the first quarter of 2008.  These gains and losses were recorded as (loss) gain on derivative instruments in the condensed consolidated statement of earnings.

 

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 has prepared and submitted the required closure plans to the Peruvian Ministry of Energy and Mines (“MEM”).  These plans have been reviewed by the responsible governmental agency and have been open to public discussion in the areas of the Company’s operations.  The Company is awaiting MEM’s report, which is expected to consolidate the issues raised in the recent review for the closure plan.

 

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The closure cost recognized for this liability includes the estimated cost required at the Peruvian operations, based on the Company’s experience, and includes cost at the Ilo smelter, the tailing disposal, and dismantling the Toquepala and Cuajone concentrators, and the shops and auxiliary facilities.

 

As of March 31, 2009, the Company has made an estimated provision of $18.2 million for this liability in its financial statements, but believes that this estimate should be viewed with caution, pending final approval of the mine closure plan.

 

The following table summarizes the asset retirement obligation activity for the first quarter of 2009 and 2008 (in millions):

 

		2009			2008
Balance as of January 1		$	18.0		$	13.1
Additions, changes in estimates					—
Accretion expense		0.2			0.3
Balance as of March 31,		$	18.2		$	13.4

 

I.                 Related Party Transactions:

 

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

 

		As of
		March 31, 2009			December 31, 2008
Affiliate receivable:
Grupo Mexico S.A.B de C.V. and affiliates		$	0.7		$	0.8
Ferrocarril Mexicano S.A. de C.V.		0.9			0.3
Mexico Proyectos y Desarrollos S.A. de C.V. and affiliates		—			0.8
		$	1.6		$	1.9
Affiliate payable:
Grupo Mexico S.A.B. de C.V. and affiliates		$	9.6		$	8.9
Mexico Proyectos y Desarrollos S.A. de C.V. and affiliates		0.2			—
		$	9.8		$	8.9

 

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 our 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.

 

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 principally 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 total amount paid by the Company for such services in the first quarter of 2009 and 2008 was $1.7 million and $3.2 million, respectively.  The Company expects to continue to pay for these services in the future.

 

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The Company’s Mexican operations paid fees of $2.4 million and $3.9 million in the first quarter of 2009 and 2008, respectively, primarily for freight services and construction services provided by subsidiaries of Grupo Mexico.

 

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 of less than $0.1 million and $0.3 million in the first quarter of 2009 and 2008, respectively, 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, our Mexican subsidiaries have provided guaranties for loans totaling $10.8 million obtained by Mexico Transportes Aereos, S.A. de C.V. (“MexTransport”).  These loans mature in 2010 ($2.3 million) and 2013 ($8.4 million).  MexTransport, a company controlled by the Larrea family, provides aviation services to our Mexican operations.  The guaranty provided to MexTransport is backed up by the transport services provided by MexTransport to the Company’s Mexican subsidiaries.  The Company paid fees of $0.3 million and $0.7 million in the first quarter of 2009 and 2008, respectively, to MexTransport for aviation services.

 

The Company purchased $1.0 million and $1.5 million in the first quarter of 2009 and 2008, respectively, of industrial materials from Higher Technology S.A.C in which Mr. Carlos Gonzalez has a proprietary interest.  The Company paid fees of $0.1 million and $0.2 million in the first quarter of 2009 and 2008, respectively, 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 $0.3 million and less than $0.1 million in the first quarter of 2009 and 2008, respectively, of industrial material from Sempertrans France Belting Technology, in which Mr. Alejandro Gonzalez is employed as a sales representative.  Also, the Company purchased $0.1 million and $0.2 million in the first quarter of 2009 and 2008, respectively, of 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 $0.4 million and $0.6 million in the first quarter of 2009 and 2008, respectively, of 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.

 

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

 

J.                Benefit Plans:

 

SCC Defined Benefit Pension Plan-

 

The components of the net periodic benefit costs for the three months ended March 31, are as follows (in millions):

 

		2009			2008
Interest cost		$	0.2		$	0.2
Expected return on plan assets		(0.1		)	(0.1		)
Amortization of net loss (gain)		(*		)	(*		)
Net periodic benefit cost		$	0.1		$	0.1

 

(*) amount is lower than $0.1 million.

 

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SCC Post-retirement Health Care Plan-

 

The components of the net periodic benefit costs for the post-retirement health care plan for the three months ended March 31, 2009 and 2008 are individually, and in total, less than $0.1 million.

 

Minera Mexico Pension Plans-

 

The components of the net periodic benefit costs for the three months ended March 31, 2009 and 2008 are as follows (in millions):

 

		2009			2008
Interest cost		$	0.5		$	0.5
Service cost		0.6			0.6
Expected return on plan assets		(0.7		)	(0.7		)
Amortization of transition assets, net		(*		)	(*		)
Amortization of net actuarial loss		(0.2		)	(*		)
Amortization of prior services cost		(*		)	(*		)
Net periodic benefit cost		$	0.2		$	0.4

 

(*) amount is lower than $0.1 million

 

Minera Mexico Post-retirement Health Care Plan-

 

The components of the net periodic cost for the three months ended March 31, 2009 and 2008 are as follows (in millions):

 

		2009			2008
Interest cost		$	1.2		$	0.8
Service cost		0.2			0.1
Amortization of net loss (gain)		0.2			(*)
Amortization of transition obligation		0.4			—
Net periodic benefit cost		$	2.0		$	0.9

 

(*) amount is lower than $0.1 million

 

 

K.            Comprehensive Income (in millions):

 

		Three months ended
		March 31,
		2009			2008
Net income		$	79.2		$	567.7
Other comprehensive income (loss) net of tax:
Additional decrease in liability for employee benefit obligation		1.3			—
Comprehensive income		80.5			567.7
Comprehensive income attributable to the non-controlling interest		0.5			2.7
Comprehensive income attributable to SCC		$	80.0		$	565.0

 

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L.    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.

 

Peruvian operations

 

The Company’s operations are subject to applicable Peruvian environmental laws and regulations.  The Peruvian government, through the MEM 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 new law announcing future closure and remediation obligations for the mining industry.  In accordance with the requirements of this law the Company has prepared and submitted the required closure plans to MEM.  These plans have been reviewed by the responsible governmental agency and have been open to public discussion in the areas of the Company’s operations.  The Company is awaiting feedback from MEM regarding public comments made to these plans.  See Note H, Asset retirement obligation, for further discussion of this matter.

 

For the Company’s Peruvian operations, environmental capital expenditures were $1.1 million and $1.5 million in the first quarter of 2009 and 2008, respectively.

 

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.  Some of these laws and regulations are relevant to legal proceedings pertaining to the Company’s San Luis Potosi copper facilities.

 

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 over the last decade, and this trend is likely to continue and has been influenced by the environmental treaty entered into by Mexico, 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

 

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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.

 

For the Company’s Mexican operations, environmental capital expenditures were $7.6 million and $1.1 million in the first quarter of 2009 and 2008, respectively.

 

Litigation matters:

 

Peruvian operations

 

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

 

The Company conducts its operations in Peru through a registered Branch.  Although the Peruvian Branch has neither capital nor liability separate from that of the Company, under Peruvian law it is deemed to have an equity capital for purposes of determining the economic interest of the holders of the labor shares.  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 workers in the mining industry would participate in the pre-tax profits of the enterprises for which they worked at a rate of 10%.  This participation was distributed 40% in cash and 60% as an equity interest in the enterprise.  Under the law, the equity participation was originally delivered to the “Mining Community”, an organization representing all workers in the mining industry.  The cash portion was distributed to the workers after the close of the year.  The accrual for this participation was (and continues to be) a current liability of the Company, until paid.  In 1978, the law was amended and the equity distribution was calculated at 5.5% of pre-tax profits and was made to individual workers of the enterprise in the form of “labor shares” to be issued in Peru by the Peruvian Branch of SCC.  These labor shares represented an equity interest in the enterprise.  In addition, according to the 1978 law, the equity participations previously distributed to the “Mining Community” were returned to the Company and redistributed in the form of labor shares to the individual employees or former employees.  The cash participation was adjusted to 4.0% of pre-tax earnings and continued to be distributed to employees following the close of the year.  Effective in 1992, the law was amended to its present status, and the workers’ participation in pre-tax profits was set at 8%, with 100% payable in cash.  The equity participation component was eliminated from the law.

 

In 1995, the Company offered to exchange new common shares of the Company for the labor shares issued under the prior Peruvian law.  Approximately 80.8% of the issued labor shares were exchanged for the Company’s common shares, greatly reducing the minority interest, now called non-controlling interest, on the Company’s balance sheet.  What remains of the workers’ equity participation is now 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 Company is a defendant in the following lawsuits:

 

1)              As stated above, in April 1996, the Company was served with a complaint filed in Peru by approximately 800 former employees, (Garcia Ataucuri and others vs. SCC), seeking 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), as required by Law No. 22333, to be issued in a proportional way to each former employee or worker in accordance with their time of work with SCC’s Branch in Peru, plus dividends on such shares.  In 2000 SCC appealed an adverse decision of

 

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an appellate civil court, affirming a decision of a lower civil court, to the Peruvian Supreme Court.  On September 19, 2001, 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.  On March 8, 2002, Mr. Garcia Ataucuri restated the claim to comply with Peruvian labor law and procedural requirements, and increased the number of plaintiffs to approximately 958 ex-workers.  In January 2005, the lower labor judge dismissed the lawsuit on procedural grounds without deciding on the merits of the case.  In March 2005, the plaintiffs appealed this decision but the appellate court dismissed the appeal due to procedural defects and remanded the case to the lower labor court for further proceedings.  The lower labor court, on motions from the plaintiffs, reinstated the appeal of the dismissal of the case of seven plaintiffs that had cured the procedural defects.  As of March 31, 2009, the case remains open with no further new developments.  The labor court has temporarily lost jurisdiction over this case until the Supreme Court decides on the Constitutional Tribunal’s decision described below.

 

In October 2007, in a separate proceeding initiated by Mr. Garcia Ataucuri against the justices of the Peruvian Supreme Court, the Peruvian Constitutional Court nullified the Peruvian Supreme Court decision issued on September 19, 2001 because it had violated Mr. Garcia Ataucuri’s constitutional due process rights by obliging him and the other plaintiffs to commence a new proceeding before the labor courts when they had litigated against the Company in civil courts for over 10 years.  The Peruvian Constitutional Court ordered the Supreme Court to decide again on the merits of the case accepting or denying the Company’s 2000 appeal.

 

Although the Company was not formally a party to the Garcia Ataucuri proceedings before the Peruvian Constitutional Court, the nullity of the favorable decision of the Supreme Court, issued on September 19, 2001, is final and cannot be appealed by the Company.

 

It is uncertain how the Peruvian Supreme Court will decide on the Company’s 2000 appeal and the merits of the case in view of the decision of the Peruvian Constitutional Court.

 

2)              On May 10, 2006, the Company was served with a second complaint filed in Peru, this time by 44 former employees, (Cornejo Flores and others vs. SCC), seeking delivery of (1) labor shares (or shares of whatever other current legal denomination) corresponding to years 1971 to December 31, 1977 (the plaintiffs are seeking the same 38,763,806.80 labor shares mentioned in the prior lawsuit), that should have been issued in accordance with Law No. 22333, plus interest and (2) 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”, plus dividends.  On May 23, 2006, the Company answered this new complaint, denying the validity of the claim.  As of March 31, 2009 the case remains open with no new developments.

 

3)              On June 27, 2008, the Company was served with a new complaint filed in Peru, this time by 82 former employees, (Alejandro Zapata Mamani and others vs. SPCC), seeking delivery of labor shares (or shares of whatever other current legal denomination) corresponding to years 1971 to December 31, 1977 (the plaintiffs are seeking the same 38,763,806.80 labor shares mentioned in the two previous labor share lawsuits), that should have been issued in accordance with Law No. 22333, plus interest, and labor shares resulting from capital increases, plus dividends.  The Company answered this new complaint, denying the validity of the claim.  As of March 31, 2009 the case remains open with no new developments.

 

4)              Additionally, in January 2009, the Company was served with a new complaint filed in Peru, this time by 12 former employees (Arenas Rodriguez and others —represented by Mr. Cornejo Flores- vs SPCC) seeking delivery of labor shares (or shares of whatever other current legal denomination) corresponding to years 1971 to December 31, 1977

 

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(the plaintiffs are seeking the same 38,763,806.80 labor shares mentioned in the three previous labor share lawsuits), that should have been issued in accordance with Law No. 22333, plus interest, and labor shares resulting from capital increases, plus dividends.  The Company answered this new complaint, denying the validity of the claim.  As of March 31, 2009 the case remains open with no new developments.

 

The Company asserts that the claims are without merit and that the labor shares were distributed to the former employees in accordance with the profit sharing law then in effect.  The Company does not believe that an unfavorable outcome is reasonably possible.  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.

 

Mexican operations

 

The Mexican Geological Services (“MGS”) Royalties: In August 2002, MGS (formerly named Council of Mineral Resources (“COREMI”)) filed with the Third Federal District Judge in Civil Matters, an action demanding from Mexcobre (La Caridad) the payment of royalties since 1997.  In December 2005, Mexcobre signed an agreement with MGS.  Under the terms of this agreement the parties established a new procedure to calculate the royalty payments applicable for 2005 and the following years, and the Company paid in January 2006, $6.9 million of royalties for 2005 and $8.5 million as payment on account of royalties from the third quarter 1997 through the last quarter of 2004.  On January 22, 2007 the Third Federal District Judge issued a ruling regarding the payment related to the period from the third quarter of 1997 through the fourth quarter of 2004.  This ruling was appealed by both parties in February 2007.  The appeal was lost by the Company in October 2007.  The Company filed a protective action (Amparo) before the Ninth collegiate Civil Tribunal which rendered a negative ruling on August 27, 2008.  The Company is defending its economic interest in the judicial process to determine the final amount to be paid to MGS.  On an ongoing basis the Company is required to pay a 1% royalty on La Caridad’s copper production value after deduction of treatment and refining charges and certain other carrying costs.

 

San Luis Potosi Facilities: The municipality of San Luis Potosi has granted Desarrolladora Intersaba, S.A. de C.V. (“Intersaba”), licenses for use of land and construction of housing and/or commercial zones in the former Ejido Capulines zone, where some residential projects like “Villa Magna” and other new residential projects are being developed within an area designated as a buffer zone due to IMMSA’s use of anhydrous ammonia gas.  This designation as a buffer zone was granted by the risk area of SEMARNAT (the federal environmental authority) within its approval of the IMMSA’s Risk Analysis.

 

Regarding this situation, a number of actions occurred, including the following:

 

1)              Against the municipality of San Luis Potosi, requesting the annulment of Desarrolladora Intersaba’s authorizations and licenses granted within the zinc plant’s buffer zone.

 

In August 2006, the action regarding the annulment of Villa Magna licenses was decided by a federal appeals court, which denied IMMSA’s request.  In September 2006, IMMSA submitted its final appeal to the Supreme Court of Justice and in February 2007, the court ruled against IMMSA.

 

IMMSA believes that even though the outcome was adverse to its interest, the construction of the “Villa Magna” housing and commercial development will not affect the operations of IMMSA’s zinc plant by itself.

 

In 2008, Intersaba filed a lawsuit against IMMSA, requesting a payment of approximately $0.8 million, due to the damages caused by the IMMSA litigation.  In

 

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November 2008, a local court ruled in favor of Intersaba and ordered IMMSA to pay $0.7 million.  IMMSA appealed this ruling.

 

In March 2009, based on the fact that Intersaba did not present, on a timely basis, accounting documents necessary to support its damage allegations, a federal judge ruled that IMMSA did not have to pay Intersaba.  The Company expects that Intersaba will appeal this ruling.

 

2)              In addition to the foregoing, IMMSA has initiated a series of legal and administrative procedures against the Municipality of San Luis Potosi due to its refusal to issue IMMSA’s use of land permit (licencia de uso de suelo) in respect to its zinc plant.  A federal judge ruled that IMMSA’s use of land permit should be granted.  In February 2009, the municipal authorities confirmed that local regulation permit IMMSA to use the land for industrial purposes.

 

3)              Additionally, Ejido Capulines, an agricultural community, filed a protective action against IMMSA’s Risk Analysis approved by SEMARNAT.  As previously noted, this approval determines a buffer zone around the San Luis facilities.

 

On November 4, 2008, a federal judge terminated the case and noted that the Ejido Capulines did not prove any harm caused by IMMSA’s Risk Analysis authorization.  In December 2008, the Ejido Capulines appealed this decision before the Federal court Jurisdiction.  The appeal is pending.

 

4)              Also, new lawsuits were filed by IMMSA against the municipality of San Luis Potosi challenging other licenses granted in the safeguard area.

 

IMMSA’s annulment of the licenses was denied by the court.  Nevertheless IMMSA believes that this ruling will not have a material adverse effect on its operations.

 

5)              IMMSA filed on October 7, 2008 a lawsuit against SEMARNAT before the Federal Tax and Administrative Justice Court seeking the nullity of a July 24, 2008 denial of the Company’s request for a safeguard declaration.

 

In March 2009, the Federal Tax and Administrative Justice Court granted IMMSA the nullity from a SEMARNAT official communication dated July 24, 2008.  In March 2009, IMMSA requested from the court a clarification of the decision.

 

The Ejidal Commissariat of the “Ejido Pilares de Nacozari”, initiated a protective action (Amparo) against the second expropriation decree (by means of which 2.322 hectares were expropriated for public use), ignoring the judicial settlement reached with the Company on this matter.  The judicial settlement had been ratified in January 2006.  The Company will defend the settlement reached with the Ejido and seek the dismissal of the case.

 

Pasta de Conchos Accident:

 

Mrs. Martinez, the wife of a miner, who died in the Pasta de Conchos accident, initiated a protective action against the negative ruling issued by the Ministry of Economy denying her request to launch a procedure to cancel IMMSA’s coal concessions, which she argued the accident should trigger.

 

The First District Administrative Judge flatly dismissed the case, but this ruling was later revised by an appeals court.  Mrs. Martinez filed a new protective action against a new ruling issued by the Ministry of Economy.  The Company is certain that an accident by itself cannot trigger a procedure of cancellation of the coal concessions.  Although the Company cannot predict the outcome of the procedures filed by Mrs. Martinez, the Company asserts that the claims of Mrs. Martinez are without merit and is vigorously defending against the actions.

 

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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.

 

Peruvian Operations

 

Approximately 68% of the Company’s Peruvian labor force was unionized at December 31, 2008, represented by eight separate unions.  Three of these unions, one at each major production area, represent the majority of the Company’s workers.  The collective bargaining agreements for these unions last through February 2010.  Additionally, there are five smaller unions, representing the balance of workers.  Collective bargaining agreements for this group are in force through November 2012.

 

From June 30 to July 5, 2008 the three major unions went on strike in support of a mining federation strike.  During this strike operations were near normal; an insignificant amount of production was lost as work continued with the support of staff and administrative personnel and with contractors.

 

Mexican operations

 

Approximately 75% of the Mexican labor force was unionized at December 31, 2008, 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.

 

In the last eight years the Cananea mine has experienced more than nine labor stoppages totaling more than 725 days of inactivity through March 31, 2009.  Beginning on July 30, 2007, our Cananea mine in Mexico started a work stoppage which continues into 2009.  On January 11, 2008 the Mexican Federal Labor Court declared the Cananea strike illegal and ordered the workers to return to work within 24 hours.  The workers partially returned to work and the Company resumed operations.  However, on April 11, 2008 the workers restarted the labor stoppage and shut down production, based upon a new federal ruling.  The Company has tried unsuccessfully to resolve the current labor stoppage that obstructs production at Cananea, in the second quarter 2008 the Board of Directors offered all Cananea employees a severance payment in accordance with the collective bargaining agreement and applicable law.  This was offered in order to award the employees a significant severance payment that allows them to choose the labor alternative that is best for each of them.  During 2008, under this plan a group of employees was terminated at a cost to the Company of $15.2 million, which was recorded in cost of sales on the consolidated statement of earnings.  There were no termination payments made in the first quarter of 2009.  In December 2008, the Mexican Federal Labor Court ruled in favor of the Company and declared the strike illegal.  The union appealed this decision.  On January 7, 2009 the judge of the fifth district on labor matters annulled the favorable decision to the Company.  The Company filed a request for a review of this ruling before an appellate federal court, which declared the strike legal on March 19, 2009.  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.

 

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In addition, the Mexican Federal Labor Court determined that damages to the machinery, materials, facilities and other equipment at the Cananea mine significantly hinder its operation and, as a result, the termination of all labor relationships are legally justified.

 

To repair the damages suffered by the Cananea mine and plant, significant investments and reconstruction work will be required over several months.  Hence, the Company is assessing the best course of action to take once it establishes the legal and safety conditions necessary to allow the Company to restore operations at Cananea.

 

The court ordered the Company to compensate the workers with three months pay plus 12 days salary for each year worked at the mine.  The Company estimates that the liability for these termination payments has been provided for by a provision previously accrued on its consolidated balance sheet.  The workers’ union announced the appeal of this ruling.

 

Additionally, our Taxco and San Martin mines have been on strike since July 2007.  It is expected that operations at these mines will remain suspended until these labor issues are resolved.

 

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.

 

The Company’s management believes that the outcome of the aforementioned legal proceeding will not have a material adverse effect on the Company’s financial position or results of operations.

 

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.

 

The Company’s direct and indirect parent corporations, including AMC and Grupo Mexico, have from time to time been named parties in various litigations involving Asarco LLC (“Asarco”).  In August 2002 the U.S. Department of Justice brought a claim alleging fraudulent conveyance in connection with AMC’s then-proposed purchase of SCC from a subsidiary of Asarco.  That action was settled pursuant to a Consent Decree dated February 2, 2003.  In March 2003, AMC purchased its interest in SCC from Asarco.  In October 2004, AMC, Grupo Mexico, Mexicana de Cobre and other parties, not including

 

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SCC, were named in a lawsuit filed in New York State court in connection with alleged asbestos liabilities, which lawsuit claims, among other matters, that AMC’s purchase of SCC from Asarco should be voided as a fraudulent conveyance.  The lawsuit filed in New York State court was stayed as a result of the August 2005 Chapter 11 bankruptcy filing by Asarco, as described below.  However, on November 16, 2007, this lawsuit after being removed to federal court was transferred to the United States District Court for the Southern District of Texas in Brownsville, Texas, for resolution in conjunction with a new lawsuit filed by Asarco’s creditors, as described below.  On February 2, 2007 a complaint was filed by Asarco on behalf of Asarco’s creditors, alleging many of the matters previously claimed in the New York State lawsuit, including that AMC’s purchase of SCC from Asarco should be voided as a fraudulent conveyance.  In June 2008 the lawsuit was concluded in Brownsville, Texas.  The constructive fraudulent conveyance claim was dismissed; however the actual fraud and the aiding and abetting the breach of fiduciary duties counts were favorable to plaintiffs.  On April 3, 2009, the United States District Court for the Southern District of Texas ordered AMC to return to Asarco a number of shares of common stock of SCC equal to those acquired by AMC in 2003, which represents approximately 30.6% of SCC’s current outstanding common shares, and an amount equal to the dividends paid on those shares of common stock of SCC since the date of their acquisition by AMC.  Grupo México announced that it intends to appeal the referred opinion and order from the U.S. District Court.

 

In 2005, certain subsidiaries of Asarco filed bankruptcy petitions in connection with alleged asbestos liabilities.  In July 2005, the unionized workers of Asarco commenced a work stoppage.  As a result of various factors, including the above-mentioned work stoppage, in August 2005 Asarco filed a voluntary petition for relief under Chapter 11 of the U.S. Bankruptcy Code before the U.S. Bankruptcy Court in Corpus Christi, Texas.  Asarco’s bankruptcy case is being joined with the bankruptcy cases of its subsidiaries.  Asarco’s bankruptcy could result in additional claims being filed against Grupo Mexico and its subsidiaries, including SCC, Minera Mexico or its subsidiaries.

 

The Company cannot assure you that these or future claims, if successful, will not have an adverse effect on the Company’s parent corporation or the Company.  Any increase in the financial obligations of the Company’s parent corporation, as a result of matters related to Asarco or otherwise could, among other effects; result in the Company’s parent corporation attempting to obtain increased dividends or other funding from the Company.

 

Other commitments:

 

Regional development contribution:

 

In December 2006, the Company’s Peruvian Branch signed a contract with the Peruvian government committing the Company to make annual contributions for five years to support the regional development of Peru.  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.  In 2009, 2008 and 2007, the Company made non-deductible contributions of $12.2 million, $18.9 million and $16.1 million out of 2008, 2007 and 2006 earnings, respectively.  These contributions were deposited with a separate entity, Copper Assistance Civil Association (Asociacion Civil Ayuda del Cobre) which will make disbursements for approved investments in accordance with the agreement.  Future contributions could increase or decrease depending on copper prices.  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.  In the first quarter of 2009 the Company made a provision of $0.6 million based on Peruvian Branch earnings.

 

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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 in our Toquepala and Cuajone mines.  The Company made provisions of $3.7 million and $14.8 million in the first quarter of 2009 and 2008, respectively, for this royalty.  These provisions are included in “Cost of sales (exclusive of depreciation, amortization and depletion)” in the consolidated statement of earnings.

 

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 reducing the computation of the power cost as called for in the original agreement.  This change represents a cost savings to the Company of approximately $245 million through March 31, 2009.

 

The Company has recently reached a Memorandum of Understanding (MOU) with Enesur regarding its power supply agreement.  The MOU contains new economic terms that the Company believes better reflect current economic conditions in Peru and in the power industry.  The Company expects to obtain savings in its future power costs if the MOU is finalized as it is presently constituted.  Additionally, the MOU includes an option for providing power for the Tia Maria project.

 

Tax contingency matters:

 

Tax contingencies are provided for under FIN No 48 (see Note E, Income Taxes).

 

M.         Segment and Related Information:

 

Company management views Southern Copper as having three operating segments and manages on the basis of these segments.  Each of its segments report independently to the Chief Operating Officer and he focuses on operating income as a measure of performance to evaluate different segments, and to make decisions to allocate resources to the reported segments.

 

The three segments identified are groups of mines with similar economic characteristics, type of products, processes and support facilities, similar regulatory environments, similar employee bargaining contracts and similar currency risks.  In addition, each mine within the individual group earns revenues from similar type of customers for their products and services and each group incurs expenses independently, including commercial transactions between groups.

 

Intersegment sales are based on arms-length prices at the time of sale.  These may not be reflective of actual prices realized by the Company due to various factors, including additional processing, timing of sales to outside customers and transportation cost.  Added to the segment information is information regarding the Company’s sales.  The segments identified by the Company are:

 

1.     Peruvian operations, which includes the Toquepala and Cuajone mine complexes and the smelting and refining plants, industrial railroad and port facilities which service both mines.

 

2.     Mexican open pit operations, which includes La Caridad and Cananea mine complexes

 

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and the smelting and refining plants and support facilities which service both mines.

 

3.     Mexican underground mining operations, which includes five underground mines that produce zinc, copper, silver and gold, a coal mine which produces coal and coke, and several industrial processing facilities for zinc and copper.  This group is identified as the IMMSA unit.

 

The Peruvian operations include two open pit copper mines whose mineral output is transported by rail to Ilo, Peru where it is processed at the Company’s smelter and refinery, without distinguishing between the products of the two mines.  The resulting product, anodes and refined copper, are then shipped to customers throughout the world.  These shipments are recorded as revenue of the Company’s Peruvian mines.

 

The Mexican open pit segment includes two copper mines whose mineral output is processed in the same smelter and refinery without distinguishing between the products of the two mines.  The resultant product, anodes and refined copper, are then shipped to customers throughout the world.  These shipments are recorded as revenues of the Company’s Mexican open pit mines.

 

The Company has determined that it is necessary to classify the Peruvian open pit operations as a separate operating segment from the Mexican open pit operations due to the very distinct regulatory and political environments in which they operate.  The Company’s Chief Operating Officer must consider the operations in each country separately when analyzing results of the Company and making key decisions.  The open pit mines in Peru must comply with stricter environmental rules and must continually deal with a political climate that has a very distinct vision of the mining industry as compared to Mexico.  In addition, the collective bargaining agreement contracts are negotiated very distinctly in each of the two countries.  These key differences result in the Company taking varying decisions with regards to the two countries.

 

The IMMSA segment includes five mines whose minerals are processed in the same smelter and refinery.  This segment also includes an underground coal mine.  Sales of product from this segment are recorded as revenues of the Company’s IMMSA unit.  While the Mexican underground mines are subject to a very similar regulatory environment as the Mexican open pit mines, the nature of the products and processes of the two Mexican operations vary distinctly.  These differences cause the Company’s Chief Operating Officer to take a very different approach when analyzing results and making decisions regarding the two Mexican operations.

 

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 March 31, 2009 (in millions)
		Mexican Open Pit			Mexican IMMSA Unit			Peruvian Operations			Corporate and other Eliminations			Consolidated
Net sales outside of segments		$	172.3		$	90.3		$	346.8		$	12.6		$	622.0
Intersegment sales		0.8			27.2			—			(28.0		)	—
Cost of sales (exclusive of depreciation, amortization and depletion)		98.6			99.4			199.1			(21.6		)	375.5
Selling, general and administrative		7.5			3.3			6.9			1.1			18.8
Depreciation, amortization and depletion		41.3			6.1			30.2			0.6			78.2
Exploration		0.7			1.2			3.5			—			5.4
Operating income		$	25.0		$	7.5		$	107.1		$	4.5		144.1
Less:
Interest, net														(16.9		)
Loss on derivative instruments														(2.6		)
Other income (expense)														2.7
Income taxes														(48.0		)
Non-controlling interest														(0.6		)
Net income attributable to SCC														$	78.7
Capital expenditure		$	25.6		$	4.8		$	24.0		$	8.6		$	63.0
Property, net		$	1,643.7		$	270.0		$	1,847.6		$	42.8		$	3,804.1
Total assets		$	2,624.2		$	590.7		$	2,050.6		$	98.7		$	5,364.2

 

		Three Months Ended March 31, 2008 (in millions)
		Mexican Open Pit			Mexican IMMSA Unit			Peruvian Operations			Corporate and other Eliminations			Consolidated
Net sales outside of segments		$	443.9		$	133.8		$	892.5		$	29.0		$	1,499.2
Intersegment sales		26.2			28.3			—			(54.5		)	—
Cost of sales (exclusive of depreciation, amortization and depletion)		183.4			85.6			278.4			(26.8		)	520.6
Selling, general and administrative		8.9			6.4			9.9			(0.5		)	24.7
Depreciation, amortization and depletion		45.2			8.0			28.0			—			81.2
Exploration		1.9			1.8			4.3			—			8.0
Operating income		$	230.7		$	60.3		$	571.9		$	1.8		864.7
Less:
Interest, net														(8.7		)
Gain on derivative instruments														2.4
Other income (expense)														(4.7		)
Income taxes														(286.0		)
Non-controlling interest														(2.7		)
Net income attributable to SCC														$	565.0
Capital expenditure		$	23.3		$	6.9		$	18.3		$	1.4		$	49.9
Property, net		$	1,596.4		$	249.3		$	1,643.6		$	63.5		$	3,552.8
Total assets		$	2,988.8		$	657.9		$	2,363.2		$	768.2		$	6,778.1

 

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Sales value per segment:

 

		Three Months Ended March 31, 2009 (in millions)
		Mexican Open Pit			Mexican IMMSA Unit			Peruvian Operations			Corporate & Elimination			Consolidated
Copper		$	107.7		$	13.1		$	303.0		$	4.6		$	428.4
Molybdenum		37.4			—			21.5			—			58.9
Other		28.0			104.4			22.3			(20.0		)	134.7
Total		$	173.1		$	117.5		$	346.8		$	(15.4	)	$	622.0

 

		Three Months Ended March 31, 2008 (in millions)
		Mexican Open Pit			Mexican IMMSA Unit			Peruvian Operations			Corporate & Elimination			Consolidated
Copper		$	315.0		$	27.9		$	709.8		$	(11.6	)	$	1,041.1
Molybdenum		125.7			—			156.9			—			282.6
Other		29.4			134.2			25.8			(13.9		)	175.5
Total		$	470.1		$	162.1		$	892.5		$	(25.5	)	$	1,499.2

 

The geographic breakdown of the Company’s sales is as follows (in millions):

 

		Three Months Ended March 31,
		2009			2008
United States		$	215.9		$	414.3
Europe		125.7			360.3
Mexico		134.7			319.5
Peru		14.4			39.3
Latin America (excluding Mexico and Peru)		80.6			281.2
Asia		50.7			78.2
Derivative instruments		—			6.4
Total		$	622.0		$	1,499.2

 

Major Customer Segment Information:

 

For the three months ended March 31, 2009, the Company had revenues from two copper customers of the Mexican and Peruvian operations, which amounted to 18.9% of total revenue; revenues from one of these customers amounted to 12.0% of total revenue.  In addition, the Company had revenues from two molybdenum customers of the Peruvian and Mexican operations, which amounted to 7.9% of total revenues; revenues from one of these customers amounted to 5.8% of total revenue, these customers represent 83.5% of the Company’s molybdenum sales revenue.

 

For the three months ended March 31, 2008, the Company had revenues from two copper customers of the Mexican and Peruvian operations, which amounted to 17.3% of total revenue; revenues from one of these customers amounted to 12.3% of total revenue.  In addition, the Company had revenues from two molybdenum customers of the Peruvian and Mexican operations, which amounted to 15.3% of total revenues; revenues from one of these customers amounted to 10.4% of total revenue, these customers represent 80.5% of the Company’s molybdenum sales value.

 

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