Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 20-F

 

 

 

¨ REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934

OR

 

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

For the fiscal year ended December 31, 2012 OR

 

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

OR

 

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

Commission file number 001-35401

 

 

CEMENTOS PACASMAYO S.A.A.

(Exact name of Registrant as specified in its charter)

 

 

PACASMAYO CEMENT CORPORATION

(Translation of Registrant’s name into English)

Republic of Peru

(Jurisdiction of incorporation or organization)

Calle La Colonia 150, Urbanización El Vivero

Surco, Lima

Peru

(Address of principal executive offices)

Javier Durand, Esq., General Counsel

Tel. +51-1-317-6000

Calle La Colonia 150

Urb. El Vivero-Lima, Peru

(Name, telephone, email and/or facsimile number and address of company contact person)

Securities registered pursuant to Section 12(b) of the Act.

 

Title of each class

 

Name of each exchange on which registered

Common Shares, par value S/.1.00 per share,
in the form of American Depositary Shares,
each representing five Common Shares
  New York Stock Exchange

Securities registered pursuant to Section 12(g) of the Act:

None

Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:

None

 

 

Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report:

 

At December 31, 2012   

531,461,479 common shares

50,503,341 investment shares

Note: At April 25, 2013, 531,461,749 common shares and 50,503,341 investment shares were outstanding.

Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes   ¨     No   x

If this report is an annual or transition report, indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.    Yes   ¨     No   x

Note- Checking the box above will not relieve any registrant required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 from their obligations under those Sections.

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   ¨     No   x Note: Registrant not subject to such filing requirements for the past 90 days.

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 (§ 203.405 of this chapter) during the preceding 12 months (or for such other period that the registrant was required to submit and post such files)    Yes   ¨     No   ¨ Note: Not required for Registrant.

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   x   Accelerated filer   ¨   Non-accelerated filer   ¨

Indicate by check mark which basis of accounting the Registrant has used to prepare the financial statements included in this filing:

 

U.S. GAAP   ¨   

International Financial Reporting Standards as issued

by the International Accounting Standards Board   x

   Other   ¨

If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the Registrant has elected to follow.    Item 17   ¨     Item 18   ¨ .

If this is an annual report, indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes   ¨     No   x

 

 

 


Table of Contents

Table of Contents

 

         Page  
PART I INTRODUCTION      1   
    ITEM 1.  

IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS

     2   
    ITEM 2.  

OFFER STATISTICS AND EXPECTED TIMETABLE

     3   
    ITEM 3.  

KEY INFORMATION

     3   
    ITEM 4.  

INFORMATION ON THE COMPANY

     20   
    ITEM 4A.  

UNRESOLVED STAFF COMMENTS

     51   
    ITEM 5.  

OPERATING AND FINANCIAL REVIEW AND PROSPECTS

     51   
    ITEM 6.  

DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES

     72   
    ITEM 7.  

MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS

     81   
    ITEM 8.  

FINANCIAL INFORMATION

     84   
    ITEM 9.  

THE OFFER AND LISTING

     85   
    ITEM 10.  

ADDITIONAL INFORMATION

     89   
    ITEM 11.  

QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

     100   
    ITEM 12.  

DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES

     100   
PART II      101   
    ITEM 13.  

DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES

     101   
    ITEM 14.  

MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS

     101   
    ITEM 15.  

CONTROLS AND PROCEDURES

     102   
    ITEM 16.  

[RESERVED]

     103   
    ITEM 16A.  

AUDIT COMMITTEE FINANCIAL EXPERT

     103   
    ITEM 16B.  

CODE OF BUSINESS CONDUCT AND ETHICS

     103   
    ITEM 16C.  

PRINCIPAL ACCOUNTANT FEES AND SERVICES

     104   
    ITEM 16D.  

EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES

     104   
    ITEM 16E.  

PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS

     104   
    ITEM 16F.  

CHANGE IN REGISTRANT’S CERTIFYING ACCOUNTANT

     104   
    ITEM 16G.  

CORPORATE GOVERNANCE

     105   
PART III      105   
    ITEM 17.  

FINANCIAL STATEMENTS

     105   
    ITEM 18.  

FINANCIAL STATEMENTS

     105   
    ITEM 19.  

EXHIBITS

     106   

 

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PART I

INTRODUCTION

Certain Definitions

All references to “we,” “us,” “our,” “our company” and “Cementos Pacasmayo” in this annual report are to Cementos Pacasmayo S.A.A., a publicly-held corporation ( sociedad anónima abierta ) organized under the laws of Peru, and, unless the context requires otherwise, its consolidated subsidiaries. The term “U.S. dollar” and the symbol “US$” refer to the legal currency of the United States; and the term “nuevo sol” and the symbol “S/.” refer to the legal currency of Peru.

Financial Information

Our consolidated financial statements included in this annual report have been prepared in nuevos soles and in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”) and audited in accordance with the standards of the Public Company Accountings Oversight Board (United States).

In this annual report, we present Adjusted EBITDA, a non-GAAP financial measure. A non-GAAP financial measure is generally defined as one that purports to measure financial performance, financial position or cash flows but excludes or includes amounts that would not be so adjusted in the most comparable IFRS measure. We present Adjusted EBITDA because we believe it provides the reader with a supplemental measure of the financial performance of our core operations that facilitates period-to-period comparisons on a consistent basis. Our management also uses Adjusted EBITDA from time to time, among other measures, for internal planning and performance measurement purposes. Adjusted EBITDA should not be construed as an alternative to profit or operating profit, as an indicator of operating performance, as an alternative to cash flow provided by operating activities or as a measure of liquidity (in each case, as determined in accordance with IFRS). Adjusted EBITDA, as calculated by us, may not be comparable to similarly titled measures reported by other companies, including those in the cement industry. For a calculation of Adjusted EBITDA and a reconciliation of Adjusted EBITDA to the most directly comparable IFRS financial measure, see “Item 3. Key Information—A. Selected Financial Data”

We have translated some of the nuevos soles amounts contained in this annual report into U.S. dollars for convenience purposes only. Unless the context otherwise requires, the rate used to translate nuevos soles amounts to U.S. dollars was S/.2.55 to US$1.00, which was the exchange rate reported on December 31, 2012, by the Peruvian Superintendency of Banks, Insurance and Private Pension Fund Administrators ( Superintendencia de Banca , Seguros y AFPs, or SBS ”) . The Federal Reserve Bank of New York does not report a noon buying rate for nuevos soles. The U.S. dollar equivalent information presented in this annual report is provided solely for convenience of the reader and should not be construed as implying that the nuevos soles amounts represent, or could have been or could be converted into, U.S. dollars at such rates or at any other rate. See “Item 3. Key Information—A. Selected Financial Data—Exchange Rates” for information regarding historical exchange rates of nuevos soles to U.S. dollars.

Certain figures included in this annual report have been subject to rounding adjustments. Accordingly, figures shown as totals in certain tables may not be arithmetic aggregations of the figures that precede them.

Market Information

We make estimates in this annual report regarding our competitive position and market share, as well as the market size and expected growth of the construction sector and cement industry in Peru. We have made these estimates on the basis of our management’s knowledge and statistics and other information from the following sources: the Central Bank of Peru ( Banco Central de Reserva del Perú ); the National Statistical Institute of Peru ( Instituto Nacional de Estadística e Informática, or “INEI”); the Association of Cement Producers in Peru ( Asociación de Productores de Cemento, or “ASOCEM”); the Ministry of Housing, Construction and Sanitation; ADUANET, a website administered by the Peruvian Tax Superintendency ( Superintendencia Nacional de Administración Tributaria, or “SUNAT”); the Peruvian Chamber of Construction ( Cámara Peruana de la Construcción ); the Global Competitiveness Index prepared by the World Economic Forum; and the U.S. Geological Survey, a U.S. government science organization. We believe these estimates to be accurate as of the date of this annual report.

 

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Forward-Looking Statements

This annual report contains forward-looking statements. Forward-looking statements convey our current expectations or forecasts of future events. These statements involve known and unknown risks, uncertainties and other factors, including those listed under “Item 3. Key Information – D. Risk factors,” which may cause our actual results, performance or achievements to differ materially from the forward-looking statements that we make.

Forward-looking statements typically are identified by words or phrases such as “may,” “will,” “expect,” “anticipate,” “aim,” “estimate,” “intend,” “project,” “plan,” “believe,” “potential,” “continue,” “is/are likely to,” or other similar expressions. Any or all of our forward- looking statements in this annual report may turn out to be inaccurate. Our actual results could differ materially from those contained in forward-looking statements due to a number of factors, including:

 

   

general economic, political and social risks inherent to conducting business in Peru;

 

   

exchange rates, inflation and interest rates;

 

   

the entry of new competitors into the market we serve;

 

   

construction activity levels, particularly in the northern region of Peru;

 

   

private investment and public spending in construction projects;

 

   

unpredictable natural disasters, such as floods and earthquakes affecting the northern region of Peru;

 

   

availability and prices of energy, admixtures and raw materials;

 

   

changes in the regulatory framework, including tax, environmental and other laws;

 

   

the successful expansion of our production capacity;

 

   

our ability to compete with potential substitutes of cement products that may be introduced in the Peruvian construction industry;

 

   

our ability to maintain and expand our distribution network;

 

   

our ability to retain and attract skilled employees;

 

   

our ability to develop successfully the phosphate rock and brine deposits in our fields;

 

   

our ability to obtain financing for our phosphate and brine projects; and

 

   

other factors discussed under “Item 3. Key Information––D. Risk Factors.”

The forward-looking statements in this annual report represent our expectations and forecasts as of the date of this annual report. Except as required by law, we undertake no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise, after the date of this annual report.

ITEM 1. IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS

Not applicable.

 

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ITEM 2. OFFER STATISTICS AND EXPECTED TIMETABLE

Not applicable.

ITEM 3. KEY INFORMATION

 

A. Selected Financial Data

The following selected consolidated financial data should be read together with “Item 5. Operating and Financial Revenues and Prospects” and our consolidated financial statements and the related notes included in this annual report.

The following selected financial data as of and for the years ended December 31, 2009, 2010, 2011 and 2012 have been derived from our annual audited consolidated financial statements included in this annual report, which have been prepared in accordance with IFRS as issued by the IASB.

 

     Year ended December 31,  
     2009     2010     2011     2012     2012  
     (in millions of S/.,
except share and per share data)
    (in millions
of US$,
except per
share
data)(1)
 

Income Statement Data:

          

Sales of goods

     S/.756.6        S/.898.0        S./995.0        S./1,169.8      US$ 458.7   

Cost of sales

     (405.5     (479.1     (569.5     (713.0     (279.6
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Gross profit

     351.1        419.1        425.5        456.8        179.1   

Operating income (expenses):

          

Selling and distribution expenses

     (17.1     (16.5     (23.7     (30.9     (12.1

Administrative expenses

     (132.9     (158.7     (196.2     (203.1     (79.6

Net gain on sale of land and mining concession(2)

     —          75.9        —          —       

Impairment of zinc mining assets(3)

     —          —          (96.0     —       

Other operating income, net

     25.7        16.6        9.3        7.7        3.0   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses, net

     (124.4     (82.7     (306.6     (226.3     (88.7

Operating profit

     226.7        336.4        118.9        230.5        90.4   

Other income (expenses):

          

Finance income

     1.9        3.3        2.7        23.3        9.1   

Finance costs

     (18.8     (15.0     (19.2     (23.8     (9.3

Gain from exchange difference, net

     8.9        2.6        1.5        (0.7     (0.3
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total other expenses, net

     (8.1     (9.2     (15.0     (1.2     (0.5

Profit before income tax

     218.6        327.2        103.9        229.3        89.9   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income tax expense

     (70.6     (104.1     (38.4     (73.7     (28.9
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Profit for the year

     S/.148.0        S/.223.1        S/.65.5        S/.155.6      US$ 61.00   

Profit per share

     S/.0.32        S/.0.48        S/.0.14        S/.0.28      US$ 0.11   

Number of shares outstanding(4)

     468,352,820        468,352,820        468,352,820        581,964,820     

Dividends per share

     S/.0.053        S/.0.155        S/.0.194        S/.0.089      US$ 0.035   

 

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     As of December 31,  
Balance Sheet Data:    2009      2010      2011      2012      2012  
     (in millions of S/.)      (in millions
of US$)(1)
 

Current assets

              

Cash and term deposits

     S/.111.7         S/.154.5         S/.363.3         S/.473.8       US$ 185.8   

Trade and other receivables

     38.0         36.4         78.4         69.4         27.2   

Income tax prepayments

     2.3         0.5         0.7         21.5         8.4   

Inventories

     123.4         160.3         206.1         278.1         109.1   

Prepayments

     9.2         11.0         11.6         10.6         4.2   

Assets classified as held for sale

     2.5               
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total current assets

     287.1         362.7         660.1         853.4         334.7   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Non-current assets

              

Other receivables

     35.4         50.9         29.1         36.1         14.2   

Available-for-sale financial investments

     18.3         30.8         22.1         34.9         13.7   

Property, plant and equipment

     1,020.5         1,102.0         1,197.4         1,394.8         547.0   

Exploration and evaluation assets

     17.6         29.3         29.9         49.5         19.4   

Deferred income tax assets

     21.6         7.6         7.8         13.4         5.3   

Other assets

     1.9         3.7         1.4         1.2         0.5   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total non-current assets

     1,115.3         1,224.3         1,287.7         1,529.9         600.1   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total assets

     1,402.4         1,587.0         1,947.8         2,383.3         934.8   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Current liabilities

              

Trade and other payables

     89.9         95.6         128.5         132.8         52.2   

Interest-bearing loans and borrowings

     88.8         121.6         139.0         22.9         9.0   

Income tax payable

     3.5         16.6         12.9         0.1         —     

Provisions

     19.3         26.0         28.7         24.0         9.5   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total current liabilities

     201.5         259.8         309.1         179.8         70.7   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Non-current liabilities

              

Interest-bearing loans and borrowings

     228.6         185.7         451.5         192.5         75.5   

Other non-current provisions

     4.6         4.8         10.9         16.6         6.5   

Deferred income tax liabilities

     133.2         143.4         102.7         100.3         39.3   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total non-current liabilities

     366.4         333.9         565.1         309.4         121.3   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total liabilities

     567.9         593.7         874.2         489.2         192.0   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Equity:

              

Capital stock

     418.8         418.8         418.8         531.4         208.4   

Investment shares

     49.6         49.6         49.6         50.5         19.8   

Additional paid-in capital

                             558.5         219.0   

Legal reserve

     53.4         74.1         90.5         105.2         41.3   

Other components of equity

     5.8         14.4         8.0         16.7         6.5   

Retained earnings

     306.1         435.7         473.7         570.9         223.9   

Non-controlling interests

     0.8         0.7         33.0         60.9         23.9   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total equity

     834.5         993.3         1,073.6         1,894.1         742.8   
     

 

 

    

 

 

    

 

 

    

 

 

 

Total liabilities and equity

     S/.1,402.4         S/.1,587.0         S/.1,947.8         S/.2,383.3       US$ 934.8   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

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     As of and for the year ended December 31,  
     2009     2010     2011     2012     2012  
     (in millions of S/.,except
percentage and operating data)
    (in millions
of US$)(1)
 

Other Financial Information:

          

Net working capital(5)

     85.6        102.9        351.0        673.6        264.0   

Capital expenditures(6)

     63.5        98.0        240.6        248.2        97.3   

Depreciation and amortization

     32.7        36.3        47.5        48.0        18.8   

Net cash flow provided by operating activities

     165.8        179.6        132.3        99.7        39.1   

Net cash flow used in investing activities

     (76.0     (19.3     (239.2     (667.4     (261.7

Net cash flow provided by (used in) financing activities

     0.6        (115.4     316.0        273.7        107.3   

Adjusted EBITDA(7)

     259.4        296.7        267.2        278.5        109.2   

Adjusted EBITDA margin(8)

     34.3     33.0     26.9     23.8     23.8

Operating Data:

          

Installed capacity (thousand metric tons per year):

          

Cement:

          

Pacasmayo

     1,900        2,900        2,900        2,900     

Rioja

     190        200        200        200     
  

 

 

   

 

 

   

 

 

   

 

 

   

Total

     2,090        3,100        3,100        3,100     

Clinker:

          

Pacasmayo

     1,300        1,300        1,300        1,500     

Rioja

     200        200        200        200     
  

 

 

   

 

 

   

 

 

   

 

 

   

Total

     1,500        1,500        1,500        1,700     

Quicklime

          

Pacasmayo

     110        240        240        240     

Production (thousand metric tons):

          

Cement:

          

Pacasmayo

     1,386        1,615        1,751        2,053     

Rioja

     159        196        195        200     
  

 

 

   

 

 

   

 

 

   

 

 

   

Total

     1,545        1,811        1,946        2,253     

Clinker:

          

Pacasmayo

     998        1,118        1,160        1,209     

Rioja

     130        160        155        159     
  

 

 

   

 

 

   

 

 

   

 

 

   

Total

     1,128        1,278        1,315        1,368     

Quicklime

          

Pacasmayo

     118        127        90        101     
          

 

(1) Calculated based on an exchange rate of S/.2.55 to US$1.00 as of December 31, 2012.
(2) Relates to our sale in March 2010 of the Raul copper mine concessions in the central region of Peru that we previously leased to the buyer.
(3) Due to a sudden and sharp drop in the international price of zinc in September 2011 and based on our expectation of future zinc prices, we recorded an impairment with respect to our zinc mining assets in 2011.
(4) Data for 2010 and 2011 does not include 1,200,000 common shares held by one of our wholly-owned subsidiaries and sold in 2012.
(5) Represents current assets minus current liabilities.
(6) Represents expenditures for the purchase of property, plant and equipment.
(7) Adjusted EBITDA for 2010 excludes a net gain of S/.75.9 million from the sale in March 2010 of the Raul copper mine concessions referred to in note 2 above. Adjusted EBITDA for 2011 excludes a S/.96.0 million non-cash impairment with respect our zinc mining assets referred to in note 3 above, and excludes mandatory workers’ profit sharing expenses of S/.4.8 million related to the sale of a minority equity interest in our subsidiary Fosfatos del Pacífico S.A. (“Fosfatos”) to an affiliate of Mitsubishi Corporation & Co., Ltd (“Mitsubishi”). For a calculation of Adjusted EBITDA and a reconciliation of Adjusted EBITDA to profit, see “Non-GAAP Financial Measure and Reconciliation” below.
(8) Adjusted EBITDA margin is calculated by dividing Adjusted EBITDA by net sales.

 

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Non-GAAP Financial Measure and Reconciliation

We define EBITDA as profit plus finance costs, income tax expenses, depreciation and amortization, and minus finance income and gain from exchange difference, net. Adjusted EBITDA for 2010 excludes a gain from the sale in March 2010 of the Raul copper mine concessions in the central region of Peru that we previously leased to the buyer. Adjusted EBITDA for 2011 excludes a non-cash loss due to an impairment with respect to our zinc mining assets that we undertook due to a sudden and sharp drop in the international price of zinc in September 2011 and based on our expectation of future zinc prices, as well as and mandatory workers’ profit sharing expenses related to the sale of a minority equity interest in our subsidiary Fosfatos to an affiliate of Mitsubishi, because accordance with IFRS, the gain from our sale of an interest in Fosfatos has been recorded as equity on our balance sheet as of December 31, 2011. We present Adjusted EBITDA because we believe it provides the reader with a supplemental measure of the financial performance of our core operations that facilitates period-to-period comparisons on a consistent basis. Our management uses Adjusted EBITDA from time to time, among other measures, for internal planning and performance measurement purposes.

Neither EBITDA nor Adjusted EBITDA should be construed as an alternative to profit or operating profit, as an indicator of operating performance, as an alternative to cash flow provided by operating activities or as a measure of liquidity (in each case, as determined in accordance with IFRS). EBITDA and Adjusted EBITDA, as calculated by us, may not be comparable to similarly titled measures reported by other companies, including those in the cement industry.

The following table sets forth the reconciliation of our profit to Adjusted EBITDA:

 

     Year ended December 31,  
     2010     2011     2012     2012  
     (in millions of S/.)     (in millions
of US$)(1)
 

Profit

     S/.223.1        S/.65.5        S/.155.6      US$ 61.0   

Finance income

     (3.3     (2.7     (23.3     (9.1

Finance costs

     15.0        19.2        23.8        9.3   

Gain from exchange difference, net

     (2.6     (1.5     0.7        0.3   

Income tax expense

     104.1        38.4        73.7        28.9   

Depreciation and amortization

     36.3        47.5        48.0        18.8   
  

 

 

   

 

 

   

 

 

   

 

 

 

EBITDA

     372.6        166.5        278.5        109.2   

Net gain on sale of land and mining concessions

     (75.9     —            —     

Impairment of zinc mining assets

     —          96.0        —          —     

Workers’ profit sharing expenses related to the sale of an interest in Fosfatos

     —          4.8        —          —     
  

 

 

   

 

 

   

 

 

   

 

 

 

Adjusted EBITDA

     S/.296.7        S/.267.2        S/.278.5      US$ 109.2   
  

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) Calculated based on an exchange rate of S/.2.55 to US$1.00 as of December 31, 2012.

Exchange Rates

The Peruvian nuevo sol is freely traded in the exchange market. Current Peruvian regulations on foreign investment allow foreign equity holders of Peruvian companies to receive and repatriate 100% of the cash dividends distributed by these companies. Non-Peruvian equity holders are allowed to purchase foreign currency at free market currency rates through any member of the Peruvian banking system and transfer such foreign currency outside Peru without restriction. Peruvian law in the past, however, has imposed restrictions on the conversion of Peruvian currency and the transfer of funds abroad, and we cannot assure you that Peruvian law will continue to permit such payments, transfers, conversions or remittances without restrictions.

 

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The following table sets forth, for the periods indicated, certain information regarding the exchange rates for nuevos soles per U.S. dollar, as published by the SBS. The Federal Reserve Bank of New York does not report a noon buying rate for nuevos soles.

 

     High      Low      Average(1)      Period end  

2008

     3.157         2.693         2.941         3.140   

2009

     3.259         2.852         3.006         2.890   

2010

     2.883         2.787         2.826         2.809   

2011

     2.833         2.694         2.755         2.696   

2012

     2.709         2.550         2.639         2.550   

October 2012

     2.602         2.578         2.588         2.592   

November 2012

     2.616         2.579         2.599         2.579   

December 2012

     2.581         2.550         2.567         2.550   

January 2013

     2.578         2.540         2.552         2.578   

February 2013

     2.586         2.567         2.578         2.586   

March 2013

     2.604         2.585         2.594         2.589   

April 2013 (through April 25)

     2.624         2.577         2.591         2.624   

Source: SBS

 

(1) Based on the exchange rate on the last day of each month during the year, except in the case of monthly data, which is based on daily exchange rates.

 

B. Capitalization and Indebtedness

Not applicable.

 

C. Reasons for the Offer and Use of Proceeds

Not applicable.

 

D. Risk Factors

Risks Relating to Peru

Economic, social and political developments in Peru could adversely affect our business, financial condition and results of operations.

All of our operations are conducted in Peru and depend on economic and political developments in the country. As a result, our business may be materially and adversely affected by economic downturns, currency depreciation, inflation, interest rate fluctuation, government policies, regulation, taxation, social instability, political unrest, terrorism and other developments in or affecting the country, over which we have no control.

The cement industry in Peru is highly dependent on construction activity in the country, which, in turn, depends on the purchasing power of consumers and, to a lesser extent, commercial and infrastructure investment. Adverse economic conditions could adversely affect construction activity and result in a decrease in demand for cement products.

In the past, Peru has experienced periods of severe economic recession, large currency devaluation and high inflation. In addition, Peru has experienced periods of political instability, which have led to adverse economic consequences. We cannot assure you that Peru will not experience similar adverse developments in the future.

While Peru has experienced economic growth in the recent past, political tensions, high levels of poverty and unemployment, and social conflicts with local communities continue to be pervasive problems in Peru. In the past, certain areas in the south and the northern highlands of Peru with significant mining developments have

 

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experienced strikes and protests related mainly to the environmental impact of metallic mining activities, which have resulted in political tensions, commercial disruptions and a climate of uncertainty with respect to future mining projects. Future government policies in response to social unrest could include, among other things, increased taxation, as well as expropriation of assets. These policies could materially and adversely affect the Peruvian economy and, as a result, our business, financial condition and results of operations.

Political developments in Peru could adversely affect our operations.

Our financial condition and results of operations may be adversely affected by changes in Peru’s political situation to the extent that such changes affect the nation’s economic policies, growth, stability, outlook or regulatory environment.

Peru has, from time to time, experienced social and political turmoil, including riots, nationwide protests, strikes and street demonstrations. Despite Peru’s ongoing economic growth and stabilization, social and political tensions and high levels of poverty and unemployment continue. Future government policies to preempt or respond to social unrest could include, among other things, expropriation or nationalization of private assets and property, suspension of the enforcement of creditors’ rights or new taxation policies. These policies could adversely and materially affect the economy and our business.

Peru’s current president, Ollanta Humala of the Gana Perú political coalition, has been in office since July 28, 2011. The election of President Humala initially generated a climate of political and economic uncertainty. However, President Humala’s administration ratified Julio Velarde to continue in his role as president of the Central Reserve Bank of Peru and appointed Luis Castilla, the Vice-Minister of Treasury under the previous administration, as Minister of Economy and Finance. In his first year in office, President Humala has substantially maintained the moderate economic policies of former president Alan García, whose administration was characterized by business-friendly and open-market economic policies that sustained and fostered economic growth, while controlling the inflation rate at historically low levels. However, we cannot assure you that the current or any future administration will maintain business-friendly and open-market economic policies or policies that stimulate economic growth and social stability. Any changes in the Peruvian economy or the Peruvian government’s economic policies may have a negative effect on our business, financial condition and results of operations.

In addition, because in the most recent election for congress no single party obtained a clear majority, government gridlock and political uncertainty may occur. We cannot provide any assurances that political or social developments in Peru, over which we have no control, will not have an adverse effect on Peru’s economic situation and on our business, results of operations, financial condition and ability to repay the notes.

Fluctuations in the value of the nuevo sol relative to the U.S. dollar could adversely affect our business, financial condition and results of operations.

Fluctuations in the value of the nuevo sol relative to the U.S. dollar could adversely affect Peru’s economy. In addition, a depreciation of the nuevo sol could increase, in terms of nuevos soles, certain of our production costs. Substantially all of our revenues are denominated in nuevos soles. However, certain of our expenses, such as the purchase of coal and electricity, are denominated in U.S. dollars. In 2012, approximately 43% of our costs of sales were denominated in U.S. dollars.We currently do not hedge our foreign currency risk exposure. In the past the exchange rate between the nuevo sol and the U.S. dollar has fluctuated significantly. We cannot assure you that the value of nuevo sol against other currencies will not fluctuate significantly in the future, which could adversely affect the Peruvian economy and our business, financial condition and results of operations.

In addition, although Peruvian law currently imposes no restrictions on the ability to convert nuevos soles to foreign currency and transfer foreign currency outside of the country, in the 1980s and early 1990s Peru imposed exchange controls, including controls affecting the remittance of dividends to foreign investors. We cannot assure you that exchange controls in Peru will not be implemented in the future. The imposition of exchange controls could have an adverse effect on the economy and on the ability of holders of ADSs to receive dividends in U.S. dollars.

 

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Inflation could adversely affect our business, financial condition and results of operations.

Peru, like some other countries in Latin America, experienced periods of hyperinflation in the 1980s and high inflation in the early 1990s. In recent years, inflation has been relatively low, with an average annual inflation rate between 2008-2012 of 3.3% as measured by the Peruvian Consumer Price Index ( Índice de Precios al Consumidor del Perú ) that is calculated and published by the INEI. If Peru experiences significant rates of inflation in the future, the economy could be adversely affected. In addition, high rates of inflation could increase our operating costs and adversely impact our operating margins if we are not able to pass the increased costs to consumers.

Changes in tax laws may increase our tax burden and, as a result, could adversely affect our business, financial condition and results of operations.

The Peruvian government from time to time implements changes to tax regulations. Any such changes may result in increases to our overall tax burden, which would negatively affect our profitability. On September 29, 2011, the Peruvian government amended the Mining Royalty Law ( Ley de la Regalía Minera ) to increase taxation on metallic and non-metallic mining activities in Peru, which has adversely affected our results of operations beginning October 1, 2011. According to this amendment, companies engaged in mining activities in Peru are required to pay mining royalty taxes on a quarterly basis in an amount equal to the greater of (i) an amount determined in accordance with a statutory scale of tax rates based on a company’s operating profit margin that is applied to its operating profit, as adjusted by certain non-deductible expenses, and (ii) 1% of a company’s net sales, in each case during the applicable quarter. Our future mining royalty tax payments will depend on our operating profit, operating profit margin and net sales. We cannot assure you that the Peruvian government will not implement additional changes to tax regulations in the future, or adopt interpretations of the tax laws and regulations that are different from our interpretations, which could adversely affect our business, financial condition and results of operations.

Earthquakes, flooding and other natural disasters could affect our business, financial condition and results of operations.

Peru is located in an area that experiences seismic activity and occasionally is affected by earthquakes. In 2007, an earthquake with a magnitude of 7.9 on the Richter scale struck the central coast of Peru, severely damaging the Ica region, located south of Lima. In addition, Peru, including the northern region where we operate and distribute our products, experiences from time to time severe rainfall and flooding, largely as a result of the climate pattern known as El Niño, which typically occurs every two to seven years. Although we have insurance covering damages caused by natural disasters, the occurrence of a severe natural disaster in the north of Peru could affect our facilities and temporarily disrupt our operations or the distribution of our products.

A resurgence of terrorism in Peru could adversely affect the Peruvian economy and, as a result, our business and results of operations.

In the past, Peru experienced significant levels of terrorist activity that reached its peak of violence against the government and private sector in the late 1980s and early 1990s. In the mid-1990s, terrorist groups suffered significant defeats, including the arrest of leaders, resulting in considerable limitations in their activities. Although terrorism no longer poses a significant threat in Peru, a small group of terrorists primarily related to drug traffickers continues to operate in remote mountainous and jungle areas in the central and southern regions of the country. A resurgence of terrorism could materially and adversely affect the Peruvian economy and, as a result, our business, financial condition and results of operations.

The Peruvian economy could be affected by adverse economic developments in regional or global markets.

Financial and securities markets in Peru are influenced, to varying degrees, by economic and market conditions in regional or global markets. Although economic conditions vary from country to country, investors’ perceptions of the events occurring in one country may adversely affect capital flows into and securities from issuers in other countries, including Peru.

 

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The Peruvian economy was adversely affected by the political and economic events that occurred in several emerging economies in the 1990s, including in Mexico in 1994 and the Asian crisis in 1997, which affected the market value of securities issued by companies from markets throughout Latin America. Similar adverse consequences resulted from the economic crisis in Russia in 1998, the Brazilian currency devaluation in 1999 and the Argentine crisis in 2001. In addition, Peru’s economy continues to be affected by events in the economies of its major regional partners and in developed economies that are trading partners or that affect the global economy. During the recent global economic and financial crisis, global conditions led to a slowdown in economic growth in Peru, slowing gross domestic product (“GDP”) growth in 2009 to 0.9%. In particular, the Peruvian economy suffered the effects of lower commodity prices in the international markets, a decrease in export volumes, a decrease in foreign direct investment inflows and, as a result, a decline in foreign reserves.

Adverse developments in regional or global markets in the future could adversely affect the Peruvian economy and, as a result, adversely affect our business, financial condition and results of operations.

Risks Relating to our Business and Industry

We are subject to the possible entry of domestic or international competitors into our market, which could decrease our market share and profitability.

The cement market in Peru is competitive and is currently served mainly by three principal groups which together supply substantially all of the cement consumed in the country. In the cement industry, the location of a production plant tends to limit the market that a plant can serve because transportation costs are high, reducing profit margins. Historically, we have supplied the northern region of Peru while the two other groups have supplied the central (which includes the Lima metropolitan area) and southern regions of Peru, driven principally by the location of production facilities and distribution focus. However, competition could intensify if other manufacturers decide to enter our market.

We may face increased competition if the other Peruvian cement manufacturers, despite incremental freight costs, expand their distribution of cement to the northern region of Peru, or if they develop a cement plant in the north, particularly if the cement markets in Lima or other areas of Peru become saturated. Some large foreign cement manufacturers have announced plans to build cement plants in the central region of the country. If competition intensifies in the central region of Peru due to the presence of foreign cement manufacturers or otherwise, it may have price repercussions in our market.

We also face the possibility of competition from the entry into our market of imported clinker, cement or other materials or products from foreign manufacturers, which may have significantly greater financial resources than us, particularly as production capacity continues to exceed depressed demand in other parts of the world and transportation costs decrease.

We may not be able to maintain our market share if we cannot match our competitors’ prices or keep pace with the development of new products. If any of these events were to occur, our business, financial condition and results of operations could be adversely affected.

Demand for our cement products is highly related to housing construction in the northern region of Peru, which, in turn, is affected by economic conditions in the region.

Cement consumption is highly related to construction levels. Demand for our cement products depends, in large part, on residential construction in the north of Peru, which consists mostly of low-income families gradually building or improving their own homes. We estimate that in 2012 auto-construcción accounted for approximately 57% of our cement sales. Residential construction, in turn, is highly correlated to prevailing economic conditions in Peru. A decline in economic conditions would reduce household disposable income and cause a significant reduction in residential construction, leading to a decrease in demand for cement. As a result, a deterioration in economic conditions in the northern region of Peru would have a material adverse effect on our financial performance. We cannot assure you that growth in Peru’s GDP, or the contribution to GDP growth attributable to the northern region of the country, will continue at the recent pace or at all.

 

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A reduction in private or public construction projects in the northern region of Peru will have a material adverse effect on our business, financial condition and results of operations.

We estimate that in 2012 approximately 26% of our cement sales were derived from private construction (other than auto-construcción ) and 17% from public construction in the north of Peru. Significant interruptions or delays in, or the termination of, private or public construction projects may adversely affect our business, financial condition and results of operations. Private and public construction levels in our market depend on investments in the region which, in turn, are affected by economic conditions.

The level of public infrastructure construction also depends, to a great extent, on the priorities and financial resources of the national, regional and local governmental authorities. The Peruvian government has recently promoted significant public spending in infrastructure projects in the north in response to an infrastructure shortage and to stimulate the economy in response to the negative effects of recent global economic and financial crisis. We cannot assure you that the Peruvian government will continue promoting recent levels of public infrastructure spending in our market. A reduction in public infrastructure spending in our market would adversely affect our business, financial condition and results of operations.

Our business, financial condition and results of operations may be adversely affected by increases in energy prices or shortages in the supply of energy.

Energy represents a significant percentage of our production costs. Our principal energy sources are coal and electricity. In 2012, the cost of energy represented approximately 33.5% of our cement production costs. We use a substantial amount of coal as a source of fuel in our production process. We purchase anthracite coal from domestic suppliers and import bituminous coal from suppliers primarily in Colombia, in each case at market prices. We do not have long-term coal supply agreements, and we do not engage in hedging transactions in connection with the price of coal. Any shortage or interruption in the supply of coal could also disrupt our operations. In addition, the price of coal is largely driven by the price of oil, and, as a result, increases in international oil prices are likely to affect the price of coal and adversely affect our results of operations.

We have a long-term electricity supply agreement with Electroperú S.A. (“Electroperú”), a government-owned company, to serve the electricity requirements of our Pacasmayo facility through December 2020. We have also entered into a supply agreement with Electro Oriente S.A. (“ELOR”) to supply the Rioja facility. Our business, financial condition and results of operations could be materially and adversely affected by higher costs, interruptions, and unavailability or shortage of electricity. We have no back-up power system at our plants and cannot assure you that, in case of interruption or failure in Electroperú’s or ELOR’s operations, we will have access to other energy sources at the same prices and conditions, which could adversely affect our business, financial condition and results of operations. Moreover, electricity to our plants is transmitted through the Peruvian Electricity Interconnection System ( Sistema Eléctrico Interconectado Nacional del Perú , or “SEIN”). Any interruptions or failures in SEIN’s system would also have a material adverse effect on our business, financial condition and results of operations.

In the recent past, we have experienced electricity rationing, limiting our use of electricity to certain times of the day. In such cases, we were forced to readjust our production schedules in order to ensure that our production process was not interrupted. In the event of any future rationing of electricity, we may not be able to readjust quickly enough and our production process may be interrupted. Future shortages or efforts to respond to or prevent shortages, such as rationing, may adversely impact the cost or supply of electricity for our operations.

A significant increase in the prices of coal or electricity would increase our costs of production. We may not be able to increase the prices of our cement products in the future if the prices of coal or electricity rises, which would adversely affect our business, financial condition and results of operations.

 

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Changes in the cost or availability of admixtures and raw materials supplied by third parties may adversely affect our business, financial condition and results of operations.

We use certain admixtures and raw materials in the production of cement, such as gypsum, burn furnace slag and iron that we obtain from third parties. In 2012, our cost of admixtures and raw materials supplied by third parties as a percentage of our cement production costs was approximately 15.7%, compared to 16.5% in 2011. In 2012, due to an increase in demand for cement and the corrective maintenance of our principal kiln, we began using imported clinker, which represented approximately 11.3% of our cement production cost in 2012. We do not have long-term contracts for the supply of admixtures, raw materials and imported clinker that we use and if existing suppliers cease operations or reduce or eliminate production of these products, our costs to procure these materials may increase significantly or we may be obligated to procure alternatives to replace these products.

We may make future acquisitions that may not achieve expected benefits.

Our strategic initiatives include pursuing acquisitions that tend to diversify our existing portfolio of products and services and expand our geographic footprint. In the future, we may decide to expand by acquiring other companies in Peru or abroad. Any future acquisitions will depend on our ability to identify suitable candidates, negotiate acceptable terms, and obtain financing for the acquisitions. If future acquisitions are significant, they could change the scale of our business and expose us to new geographic, political, operating and financial risks. In addition, each acquisition involves a number of risks, such as the diversion of our management’s attention from our existing business to integrating the operations and personnel of the acquired business, possible adverse effects on our results of operations during the integration process, our inability to achieve the intended objectives of the combination and potential unknown liabilities associated with the acquired assets.

We may not be able to obtain the funding required to implement future strategies.

Our strategies to continue to expand our cement production capacity and distribution network and to develop our brine and phosphate projects require significant capital expenditures. We cannot assure you that we will generate sufficient cash flow from operations, or that we will have access to external financing sources, to adequately fund such capital expenditures. Our access to external sources of financing will depend on many factors, including factors beyond our control, such as conditions in the global capital markets and investors’ risk perception of investing in Peru and in emerging markets generally. Any equity or debt financing, if available, may not be on terms that are favorable to us. If our access to external financing is limited, we may not be able to execute our strategy, which could adversely affect our business, financial condition and results of operations.

We are subject to risks related to litigation and administrative proceedings that could adversely affect our business and financial performance in the event of an unfavorable ruling.

The nature of our business exposes us to litigation relating to product liability claims, labor, health and safety matters, environmental matters, regulatory, tax and administrative proceedings, governmental investigations, tort claims and contract disputes, among other matters. In the past, we have been subject to antitrust and tax proceedings or investigations. While we contest these matters vigorously and make insurance claims when appropriate, litigation is inherently costly and unpredictable, making it difficult to accurately estimate the outcome of actual or potential litigation. Although we establish provisions as we deem necessary, the amounts that we reserve could vary significantly from any amounts we actually pay due to the inherent uncertainties in the estimation process. We cannot assure you that these or other legal proceedings will not materially affect our ability to conduct our business, financial condition and results of operations in the event of an unfavorable ruling.

Our business is subject to a number of operational risks, which may adversely affect our business, financial condition and results of operations.

Our business is subject to several industry-specific operational risks, including accidents, natural disasters, labor disputes and equipment failures. Such occurrences could result in damage to our production facilities, and equipment and/or the injury or death of our employees and others involved in our production process. Moreover, such accidents or failures could lead to environmental damage, loss of resources or intermediate goods, delays or the

 

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interruption of production activities and monetary losses, as well as damage to our reputation. Our insurance may not be sufficient to cover losses from these events, which could adversely affect our business, financial condition and results of operations.

In addition, key equipment at our facilities, such as our mills and kilns, may deteriorate sooner than we currently estimate. Such deterioration of our assets may result in additional maintenance or capital expenditures, and could cause delays or the interruption of our production activities. If these assets do not generate the cash flows we expect, and we are not able to procure replacement assets in an economically feasible manner, our business, financial condition and results of operations may be materially and adversely affected.

Our business depends on the continued operation of our flagship Pacasmayo plant.

Our flagship production facility in Pacasmayo is essential to our business. In 2012, approximately 91% of our total cement and all of our quicklime was produced at this facility. The Pacasmayo plant is subject to normal hazards of operating any cement production facility, including accidents and natural disasters. Any interruption in our operation of the Pacasmayo facility or a decrease in the effective capacity of this facility would adversely affect our results of operations, and any prolonged disruption in the operation of this facility would have a material adverse effect on our business, financial condition and results of operations.

The introduction of cement substitutes into the market and the development of new construction techniques could have a material adverse effect on our business, financial condition and results of operations.

Materials such as plastic, aluminum, ceramics, glass, wood and steel can be used in construction as a substitute for cement. In addition, other construction techniques, such as the use of dry wall, could decrease the demand for cement and concrete. In Peru, dry wall has only been introduced into the housing construction market in recent years and it is not widely used. However, the use of dry walls for housing construction could increase significantly in the future as it becomes more popular. In addition, research aimed at developing new construction techniques and modern materials may introduce new products in the future. The use of substitutes for cement could cause a significant reduction in the demand and prices for our cement products.

Our success depends on key members of our management.

Our success depends largely on the efforts and strategic vision of our executive management team and board of directors. The loss of the services of some or all of our executive management and members of our board of directors could have a material adverse effect on our business, financial condition and results of operations.

The execution of our business plan also depends on our ongoing ability to attract and retain additional other qualified employees capable of operating our plants. Due to the limited pool of skilled workers in the north of Peru or workers from other regions willing to relocate to the north of Peru, we may not be successful in attracting and retaining the personnel we require. If we are unable to hire, train and retain qualified employees at a reasonable cost, we may be unable to successfully operate our business or reach full planned production levels in a timely manner and, as a result, our business, financial condition and results of operations could be adversely affected.

Our operations and sales are highly concentrated in the northern region of Peru.

All of our operations are located in the northern region of Peru, including our production facilities and the quarries from where we obtain limestone to produce cement. In addition, substantially all of our cement products are sold to consumers in this market. As a result, any adverse economic, political or social conditions affecting the northern region of Peru, as well as natural disasters and weather conditions, such as the El Niño climate pattern, among other factors that may affect this region, could have a material adverse affect on our business, financial condition and results of operations.

 

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We are subject to environmental regulations and may be exposed to liability and political cost as a result of our handling of hazardous materials and potential costs for environmental compliance.

We are subject to various environmental protection and health and safety laws and regulations that regulate, among other things, the generation, storage, handling, use and transportation of hazardous materials; emissions and discharge of hazardous materials; and the health and safety of our employees. Pursuant to Peruvian law, in order to conduct mining and industrial activities, we are required, among other things, to (i) submit an environmental impact assessment to the Ministry of Production ( Ministerio de la Producción ) and a mining closure plan to the Ministry of Energy and Mines ( Ministerio de Energía y Minas ) prior to initiating mining activities, (ii) comply with certain air emission and wastewater discharge standards, (iii) obtain approval from the water management authority to discharge wastewater into natural water sources or soil, (iv) dispose solid waste generated by us in special landfills exclusively through companies registered with the environmental agency, and (v) store fuel in compliance with environmental and safety standards. In addition, we are required to have a health and safety committee and develop an internal health and safety code. Although we believe we are in compliance with all these regulations in all material respects, we cannot assure you that we have been or will be at all times in full compliance with these laws and regulations. Any violation of such laws or regulations could result in substantial fines, criminal sanctions, revocations of operating permits and shutdowns of our facilities. In addition, current or future governments may also impose stricter regulations which may require us to incur higher compliance costs.

Pursuant to certain applicable environmental laws, we could be found liable for all or substantially all of the damages caused by pollution at our current or former facilities or those of our predecessors or at disposal sites. We could also be found liable for all incidental damages due to the exposure of individuals to hazardous substances or other environmental damage.

We cannot assure you that our costs of complying with current and future environmental and health and safety laws and regulations, and any liabilities arising from past or future releases of, or exposure to, hazardous substances will not adversely affect our business, financial condition and results of operations.

International agreements related to climate change may result in an increase in our costs.

There are ongoing international efforts to address greenhouse emissions. The United Nations and certain international organizations have taken action against activities that may increase the atmospheric concentration of greenhouse gases. Regulatory measures, such as the Kyoto Protocol, aimed at addressing greenhouse gas emissions and climate changes, are in various stages of negotiation and implementation. Such measures may result in an increase in costs to us for installation of new controls aimed at reducing greenhouse gas emissions, purchase of credits or licenses for atmospheric emissions, and monitoring and registration of greenhouse gas emissions from our operations. These measures, if adopted in Peru, could adversely affect our business, financial condition and results of operations.

Changes in regulations or in the interpretation of regulations may adversely affect our business, financial condition and results of operations.

Our business is subject to extensive regulation in Peru, including, among others, relating to tax, environmental, labor, health and safety, and mining matters. We believe that our facilities are currently operating in all material respects in accordance with all applicable concessions, laws and regulations. Future regulatory changes, changes in the interpretation of such regulations or stricter enforcement of such regulations, including changes to our concession agreements, may increase our compliance costs and could potentially require us to alter our operations. We cannot assure you that regulatory changes in the future will not adversely affect our business, financial condition and results of operations.

A dispute with the labor unions that represent our employees could have an adverse effect on our business, financial condition and results of operations.

As of December 31, 2012, approximately 20% of our employees were members of employee unions. Our practice is to extend some of the benefits we offer our unionized employees to other employees. Although we

 

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consider our relations with our employees are currently positive, we cannot assure you that we will not experience work slowdowns, work stoppages, strikes or other labor disputes in the future, which could adversely affect our business, financial condition and results of operations.

New projects may require the prior approval of local indigenous communities.

On September 7, 2011, Peru enacted Law No. 29785, regarding the Prior Consultation Right of Local Indigenous Communities, in accordance with the International Labor Organization Convention No. 169 ( Ley del Derecho a la Consulta Previa a los Pueblos Indígenas y Originarios, Reconocido en el Convenio 169 de la Organización Internacional del Trabajo ). This law, which became effective on December 6, 2011, establishes a prior consultation procedure ( procedimiento de consulta previa ) that the Peruvian government must carry out with local indigenous communities whose rights may be directly affected by new legislative or administrative measures, including the granting of new mining concessions. Local indigenous communities do not have a veto right; upon completion of this prior consultation procedure, the Peruvian government retains the discretion to approve or reject the applicable legislative or administrative measure. However, to the extent that in the future our new projects may require legislative or administrative measures that impact local indigenous communities, we may not be able to undertake such projects, unless the Peruvian government first conducts the foregoing consultation procedure. We cannot assure you that this law will not adversely affect our new projects and have an adverse effect on our business, financial condition and results of operations.

Additional Risks Relating to our Development Projects

We have not established reserves with respect to our phosphate or brine projects.

We have not established reserves with respect to our phosphate or brine projects. We have only verified mineralized material in our phosphate deposits, and both projects are undergoing basic engineering studies. Such mineralized material will not qualify as reserves until a comprehensive evaluation, based upon unit costs, grades, recoveries and other factors, concludes economic and legal feasibility. The cost, timing and complexities of upgrading mineralized material to reserves may be greater than we anticipate. Mineral exploration and development involves a high degree of risk that even a combination of careful evaluation, experience and knowledge cannot eliminate, and few properties that are explored are ultimately developed into producing mines. Once mineralization is discovered, it may take a number of years from the initial phases of drilling before production is possible, during which time the economic feasibility of production may change. Substantial expenditures typically are required to establish reserves through drilling, to determine metallurgical processes to extract the minerals from the ore and to construct mining and processing facilities.

We cannot assure you that we will be able to establish the presence of any reserves for phosphate or brine. The failure to establish reserves would materially affect our ability to develop our phosphate and brine projects and could significantly reduce their estimated value.

Mineralized material calculations are only estimates.

Our calculation of the mineralized material at our Bayóvar field is only an estimate and depends on geological interpretation and statistical inferences or assumptions drawn from drilling and sampling analysis, which may prove to be materially inaccurate. There is a significant degree of uncertainty attributable to the calculation of mineralized material. Until mineralized material is actually mined and processed, the quantity of mineralized material and grades must be considered as estimates only and we cannot assure you that indicated levels will actually be produced.

The estimate of mineralized material is partially dependent upon the judgment of the person preparing the estimates. The process relies on the quantity and quality of available data and is based on knowledge, mining experience, statistical analysis of drilling results and industry practices. Valid estimates at a given time may significantly change when new information becomes available.

 

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Estimating mineralized material may have to be recalculated based on further exploration or development activity or actual production experience, which could materially and adversely affect estimates of the quantity or grade of mineralized material. Any material changes in quantity and grades of mineralized material will affect the economic viability of placing a property into production and a property’s return on capital. We cannot assure you that mineralized material can be mined or processed profitably.

Our phosphate and brine projects are not part of our core cement business and we cannot assure you that we will be able to profitably extract and sell these products.

We are undertaking two non-metallic mining projects to develop phosphate and brine deposits. However, we are developing basic engineering studies and we cannot assure you that these projects will be successful or profitable. Mining is highly speculative in nature, involves many risks and can be unsuccessful. In addition, our core competency is the production and distribution of cement products. We have no prior experience in planning, developing and managing large-scale mining projects, and we have no operating experience or track record in extracting, processing or commercializing phosphate or brine minerals to assess our potential performance. The development of these two projects may result in unforeseen operating difficulties and may require significant financial and managerial resources that would otherwise be available for the ongoing development of our existing cement operations.

We may face several factors that may impair our ability to execute these projects successfully including, among others, the following:

 

   

delays in obtaining regulatory approvals, licenses or permits from different governmental or regulatory authorities, including environmental permits;

 

   

increases in the cost of energy, equipment, materials or labor, making the project economically unfeasible;

 

   

adverse weather conditions, natural disasters, accidents or other unforeseen events;

 

   

unforeseen engineering, design, environmental or geological problems;

 

   

insufficient access to adequate means of transportation for our minerals, including delays in the construction of a port nearby;

 

   

opposition from local communities;

 

   

strikes or labor disputes;

 

   

changes in the level of demand and prices for products derived from these materials; and

 

   

adverse changes in Peru’s regulatory framework.

Any of these factors may delay our projects and may increase our projected capital costs. If we are unable to complete these projects, any costs incurred in connection with these projects may not be recoverable. If we experience delays, cost overruns, or changes in market circumstances, we may not be able to demonstrate the commercial viability of these projects or achieve the intended economic benefits, which would materially and adversely affect our business, financial condition and results of operations.

In the case of our Brine Project, we may face difficulties in marketing and distributing the products derived from these fields. Even if we successfully extract these minerals, we may not be able to market them successfully or find suitable buyers, which may have an adverse effect on our business, financial condition and results of operations.

 

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The actual amount of capital required for our phosphate and brine projects may vary significantly from our current estimates.

Our phosphate and brine initiatives are complex projects that require significant capital investment. Our estimated capital amounts for these projects are based on preliminary estimates and assumptions we have made about the mineral deposits, equipment, labor, permits and other factors required to complete the projects. If any of these estimates or assumptions change, the actual timing and amount of capital required may vary significantly from what we anticipate. Additional funds may be required in the event of departures from current estimates, unforeseen delays, cost overruns, engineering design changes or other unanticipated expenses, or if we are unable to find a suitable strategic partner to assist in financing our phosphate project. We cannot assure you that additional financing will be available to us, or, if available, that it can be obtained on a timely basis and on commercially acceptable terms.

If we have difficulties working with Mitsubishi to develop our phosphate project or with Quimpac to develop our brine project, we may face difficulties in carrying out these projects.

We are unfamiliar with the commercial market for phosphate and brine products and are seeking to develop these projects with partners that have expertise in commercializing these products. We sold a minority equity interest in our subsidiary Fosfatos del Pacifico S.A. to an affiliate of Mitsubishi, which will assist us to develop our phosphate deposits. In addition, Mitsubishi entered into a 20-year off-take agreement with Fosfatos del Pacífico S.A. We have formed Salmueras Sudamericanas S.A. (“Salmueras”) with Quimpac S.A. (“Quimpac”) as a minority partner to assist in financing our brine project and provide its expertise in the commercialization of chemical components. If we encounter difficulties working with Mitsubishi or Quimpac, we may not be able to execute these projects as currently contemplated.

Risks Relating to our Common Shares and ADSs

The market price of our ADSs may fluctuate significantly, and you could lose all or part of your investment.

Volatility in the market price of our ADSs may prevent you from being able to sell your ADSs at or above the price you paid for them. The market price and liquidity of the market for our ADSs may be significantly affected by numerous factors, some of which are beyond our control and may not be directly related to our operating performance. These factors include, among others:

 

   

actual or anticipated changes in our results of operations, or failure to meet expectations of financial market analysts and investors;

 

   

investor perceptions of our prospects or our industry;

 

   

operating performance of companies comparable to us and increased competition in our industry;

 

   

new laws or regulations or new interpretations of laws and regulations applicable to our business;

 

   

general economic trends in Peru;

 

   

catastrophic events, such as earthquakes and other natural disasters; and

 

   

developments and perceptions of risks in Peru and in other countries.

Our controlling shareholder has significant influence over us and his interests could conflict with the interests of other shareholders.

 

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As of March 31, 2013, our controlling shareholder beneficially owned 50.94% of our outstanding common shares. As a result, our controlling shareholder has the ability to determine the outcome of substantially all matters submitted for a vote to our shareholders and thus exercise control over our business policies and affairs, including, among others, the following:

 

   

the composition of our board of directors and, consequently, any determinations of our board with respect to our business direction and policy, including the appointment and removal of our executive officers;

 

   

determinations with respect to mergers, other business combinations and other transactions, including those that may result in a change of control;

 

   

whether dividends are paid or other distributions are made and the amount of any such dividends or distributions;

 

   

whether we offer preemptive and accretion rights to holders of our common shares in the event of a capital increase;

 

   

sales and dispositions of our assets; and

 

   

the amount of debt financing that we incur.

Our controlling shareholder may direct us to take actions that could be contrary to the interests of our other shareholders and may be able to prevent other shareholders from blocking these actions or from causing different actions to be taken. Also, our controlling shareholder may prevent change of control transactions that might otherwise provide the shareholders with an opportunity to dispose of or realize a premium on their investment in our common shares and ADSs. We cannot assure you that our controlling shareholder will act in a manner consistent with our other shareholders’ best interests.

Holders of ADSs may be unable to exercise voting rights with respect to our common shares underlying the ADSs at our shareholders’ meetings.

Holders of ADSs may exercise voting rights with respect to the common shares represented by the ADSs only in accordance with the deposit agreement relating to the ADSs. Holders of our common shares will receive notice of shareholders’ meetings through publication of a notice in an official gazette in Peru, a Peruvian newspaper of general circulation and the bulletin of the Lima Stock Exchange, and will be able to exercise their voting rights by either attending the meeting in person or voting by proxy. ADS holders will not receive notice directly from us. Instead, pursuant to the deposit agreement, we will notify the depositary, who will mail to holders of ADSs the notice of the meeting and a statement as to the manner in which voting instructions may be given. To exercise their voting rights, ADS holders must instruct the depositary how to exercise the voting rights for the common shares which underlie their ADSs. Due to these additional procedural steps involving the depositary, the process for exercising voting rights may take longer for ADS holders than for holders of our common shares.

Holders of ADSs also may not receive voting materials in time to instruct the depositary to vote the common shares underlying their ADSs. In addition, the depositary and its agents are not responsible for failing to carry out voting instructions of the holders of ADS or for the manner of carrying out such instructions, unless such failure can be attribute to gross negligence, bad faith or willful misconduct on the part of the depositary or its agents. Accordingly, holders of ADSs may not be able to exercise voting rights, and they will have little, if any, recourse if the underlying common shares are not voted as requested.

Our shareholders’ ability to receive cash dividends may be limited.

Our shareholders’ ability to receive cash dividends may be limited by the ability of the depositary to convert cash dividends paid in nuevos soles into U.S. dollars. Under the terms of our deposit agreement with the depositary for the ADSs, the depositary will convert any cash dividend or other cash distribution we pay on the common shares underlying the ADSs into U.S. dollars, if it can do so on a reasonable basis and can transfer the U.S. dollars to the United States. If this conversion is not possible or if any government approval is needed and cannot be

 

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obtained, the deposit agreement allows the depositary to distribute the foreign currency only to those ADR holders to whom it is possible to do so. If the exchange rate fluctuates significantly during a time when the depositary cannot convert the foreign currency, holders of ADSs may lose some or all of the value of the dividend distribution.

Holders of ADSs may be unable to exercise preemptive or accretion rights with respect to the common shares underlying their ADSs.

Under Peruvian corporate law, if we issue new common shares as part of a capital increase, unless otherwise agreed to by holders of 40% of our outstanding common shares, our shareholders will generally have the right to subscribe to a proportional number of common shares of the class held by them to maintain their existing ownership percentage, which is known as preemptive rights. In addition, shareholders are entitled to the right to subscribe for the unsubscribed common shares of either the class held by them or other classes which remain unsubscribed at the end of a preemptive rights offering, on a pro rata basis, which is known as accretion rights. Holders of ADSs may not be able to exercise the preemptive or accretion rights relating to common shares underlying the ADSs unless a registration statement under the Securities Act is effective with respect to those rights or an exemption from the registration requirements of the Securities Act is available. We are not obligated to file a registration statement with respect to the common shares relating to these preemptive and accretion rights, and we cannot assure you that we will file any such registration statement. Unless we file a registration statement or an exemption from registration is available, holders of ADSs may receive only the net proceeds from the sale of their preemptive and accretion rights by the depositary or, if the preemptive and accretion rights cannot be sold, they will be allowed to lapse. As a result, U.S. holders of our ADSs may suffer dilution of their interest in our company upon future capital increases.

We are entitled to amend the deposit agreement and to change the rights of ADS holders under the terms of such agreement, without the prior consent of the ADS holders.

We are entitled to amend the deposit agreement and to change the rights of the ADS holders under the terms of such agreement, without the prior consent of the ADS holders. Any change related to an increase in deposits or charges for book-entry securities services or any modification that might hinder the rights of the ADS holders will be effective within 30 days after the ADS holders have received notice of such change or modification and such holders will have no right to any compensation whatsoever.

Our status as a foreign private issuer allows us to follow alternate standards to the corporate governance standards of the New York Stock Exchange, which may limit the protections afforded to investors.

We are a “foreign private issuer” within the meaning of the New York Stock Exchange corporate governance standards. Under New York Stock Exchange rules, a foreign private issuer may elect to comply with the practices of its home country and not to comply with certain corporate governance requirements applicable to U.S. companies with securities listed on the exchange. We currently follow certain Peruvian practices concerning corporate governance and intend to continue to do so. Accordingly, holders of our ADSs will not have the same protections afforded to shareholders of companies that are subject to all New York Stock Exchange corporate governance requirements.

For example, the New York Stock Exchange listing standards provide that the board of directors of a U.S. listed company must have a majority of independent directors at the time the company ceases to be a “controlled company”. Under Peruvian corporate governance practices, a Peruvian company is not required to have a majority of independent members on its board of directors.

The listing standards for the New York Stock Exchange also require that U.S. listed companies, at the time they cease to be “controlled companies”, have a nominating/corporate governance committee and a compensation committee (in addition to an audit committee). Each of these committees must consist solely of independent directors and must have a written charter that addresses certain matters specified in the listing standards. Under Peruvian law, a Peruvian company may, but is not required to, form special governance committees, which may be composed partially or entirely of non-independent directors.

 

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In addition, New York Stock Exchange rules require the independent non-executive directors of U.S. listed companies to meet on a regular basis without management being present. There is no similar requirement under Peruvian law.

The New York Stock Exchange’s listing standards also require U.S. listed companies to adopt and disclose corporate governance guidelines. In July 2002, the Peruvian Securities Commission and a committee comprised of regulatory agencies and associations prepared and published a list of suggested non-mandatory corporate governance guidelines called the “Principles of Good Governance for Peruvian Companies.” Although we have implemented a number of these measures, we are not required to comply with the corporate governance guidelines by law or regulation.

Minority shareholders in Peru are not afforded equivalent protections as minority shareholders in other jurisdictions and investors may face difficulties in commencing judicial and arbitration proceedings against our company or the controlling shareholder.

Our company is organized and existing under the laws of Peru, and our controlling shareholder is resident in Peru. Accordingly, investors may face difficulties in serving process on our company, our officers and directors or the controlling shareholder in other jurisdictions, and in enforcing decisions granted by courts located in other jurisdictions against our company, our officers and directors or the controlling shareholder that are based on securities laws of jurisdictions other than Peru.

In Peru, there are no proceedings to file class action suits or shareholder derivative actions with respect to issues arising between minority shareholders and an issuer, its controlling shareholders or directors and officers. Furthermore, the procedural requirements to file actions by shareholders differ from those of other jurisdictions, such as in the United States. As a result, it may be more difficult for our minority shareholders to enforce their rights against us, our directors, officers or controlling shareholder as compared to the shareholders of a U.S. company. The deposit agreement provides that the depositary has no obligation to commence or become involved in any judicial proceedings and any other legal actions relating to the ADSs or the deposit agreement, either on behalf of the ADS holders or on behalf of any other person.

ITEM 4. INFORMATION ON THE COMPANY

 

A. History and Development of the Company.

Our history

Cementos Pacasmayo S.A.A. began its operations in 1957 and is a publicly-held corporation ( sociedad anónima abierta ) organized under the laws of Peru. Our executive offices are located at Calle La Colonia 150, Urbanización El Vivero, Surco, Lima, Peru. Our telephone number at this location is + (511) 317-6000. Our website address is www.cementospacasmayo.com.pe. Information on or accessible through our website is not a part of this annual report.

Cementos Pacasmayo and Hochschild Mining plc together constitute the two businesses of the Hochschild Group, which has operated in Latin America for the past 100 years. Hochschild Mining plc is incorporated in the United Kingdom and has been listed on the London Stock Exchange since 2006. Cementos Pacasmayo has been listed on the Lima Stock Exchange since 1995. As of March 31, 2013, Eduardo Hochschild, directly and indirectly, owns and controls 50.94% of the shares of Hochschild Mining plc. Through Inversiones Pacasmayo S.A. (“IPSA”), Eduardo Hochschild, directly and indirectly, owns and controls 52.63% of the outstanding common shares and 33.17% of the outstanding non-voting investment shares of Cementos Pacasmayo.

The Hochschild Group traces its origins to 1911, when Mauricio Hochschild, a German mining engineer, founded a group of companies in South America that came to be known as the Hochschild Group. Following World War I, the Hochschild Group expanded into Bolivia where it developed significant interests in tin. The Hochschild Group commenced operations in Peru in 1925 and in 1945 Luis Hochschild, the nephew of Mauricio Hochschild (and the father of Eduardo Hochschild), joined the Hochschild Group’s Peruvian operations.

 

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During the first decades of its operations, the Hochschild Group focused on the commercialization of minerals, although it later began operating its own mines and other industrial companies. During World War II, the Hochschild Group was a key supplier of tin and other metals to the allied forces.

Cementos Pacasmayo, was incorporated in Lima, Peru in 1949, by a group of private investors that founded the company to serve the cement market in the northern region of Peru. The Hochschild Group acquired its initial ownership interest in us in 1956. Set forth below are key developments in our company’s history.

 

   

In 1957, we began our operations with the installation of our first clinker line with an installed production capacity of approximately 110,000 metric tons per year. In 1966 and 1977, we added a second and third clinker line, respectively, increasing our installed clinker production capacity to approximately 830,000 metric tons per year.

 

   

In November 1984, the South American mining and industrial operations of the Hochschild Group were sold to the Anglo American Corporation of South Africa which, in the same month, sold the Peruvian operations of the Hochschild Group, including its interest in Cementos Pacasmayo and predecessors of Hochschild Mining plc, to a group of companies controlled by Luis Hochschild.

 

   

In 1995, we began our distribution network to commercialize and distribute our products throughout the northern region of Peru. In that same year, we also listed our common shares with the Lima Stock Exchange, currently under the ticker symbol “CPACASC1.”

 

   

In 1998, we acquired from the Peruvian government our Rioja facility, located in the northeast of Peru. At the time, the Rioja facility had one clinker line with an installed cement production capacity of approximately 35,000 metric tons per year.

 

   

In 2003, we acquired Zemex Corporation, a U.S. company engaged in non-metallic mining and industrial activities in the United States and Canada, which we sold in 2007 in a series of transactions.

 

   

In 2009, we created Fosfatos in order to explore phosphate rock deposits from our concession at Bayóvar in the north of Peru.

 

   

In 2010, we reached an aggregate total installed cement production capacity of 3.1 million in our Pacasmayo and Rioja facilities and completed the conversion of our Waelz kiln, retrofitting it to produce quicklime or calcine zinc interchangeably. That same year, we also sold our copper mining concessions in the central region of Peru known as “Mina Raul,” which were previously leased to a third party, for US$28.0 million.

 

   

In 2011, we created Salmueras together with Quimpac, the leading chemical company in Peru, to develop brine deposits in our combined fields in the coastal region of Piura in the north of Peru.

 

   

In December 2011, we sold a minority equity interest in Fosfatos to an affiliate of Mitsubishi to develop our phosphate deposits in the Bayóvar fields, in the northwest of Peru.

 

   

In March 2012, we completed our initial equity offering of 22,296,800 ADSs in the United States. As a result, our ADSs are listed on the New York Stock Exchange.

 

   

In 2012, we entered into a supply agreement, later amended in 2013, with ThyssenKrupp Polysius and Loesche for US$113.4 million for the provision of key equipment for our new plant in Piura; which is expected to have an annual production capacity of 1.6 million metric tons of cement and 1.0 million tons of clinker.

 

   

In February 2013, we issued US$300,000,000 of our 4.50% Senior Notes due 2023, as part of our first international bond offering. Proceeds have been used to prepay amounts outstanding on our secured loan agreement with BBVA Banco Continental and the remaining will be used in capital expenditures incurred in connection with the construction and operation of the new Piura plant and our cement business.

 

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Capital Expenditures

Our current plans for our cement business contemplate capital expenditures in 2013 of approximately US$154 million for the engineering studies and equipment for the new cement plant in Piura, and maintenance expenditures for our Pacasmayo and Rioja facilities. Excluding the capital expenditure for our new cement plant in Piura, we expect to spend over the next five years approximately US$20 million per year on recurring capital expenditures necessary to maintain our plants and equipment. For the new cement plant in Piura, we estimate a total investment of US$310 million, having already committed investments of approximately US$113.4 million related to a supply agreement with ThyssenKrupp Polysius and Loesche for the supply of key equipment.

In February 2013, we issued US$300,000,000 of our 4.50% Senior Notes due 2023, as part of our first international bond offering. A substantial portion of the proceeds will be used in capital expenditures incurred in connection with the construction and operation of the new Piura plant and our cement business. In addition to our cement business, we expect to have substantial capital expenditure requirements to develop our phosphate and brine projects, if the feasibility and other studies conclude that developing these projects will be legally and economically feasible. We currently estimate the total cost of developing these projects in the range of US$400 to US$500 million plus VAT, for the phosphate project; and in the range of US$250 to US$300 million plus VAT, for the brine project. These amounts are estimates and subject to change, and we will not present any specific timetables until the basic engineering studies for both projects are completed.

We expect to finance our Phosphate and Brine projects with a combination of the net proceeds from the initial public offering of ADSs, new borrowings and financial contributions from us and our minority partners. In our phosphate project, we sold a minority equity interest in Fosfatos del Pacifico S.A. to an affiliate of Mitsubishi for an aggregate purchase price of approximately US$46.1 million. In our brine project, we have entered into a strategic partnership with Quimpac, under which we have committed to invest a total of US$100 million and Quimpac is obligated to invest approximately US$14.2 million as a minority partner over the time of the agreement in order to maintain its current equity interest. Our phosphate and brine projects are not part of our core cement business, and, accordingly, we expect to evaluate strategic options as we continue to develop our projects.

The table below provides our total capital expenditures incurred in 2010, 2011 and 2012.

 

     Year ended December 31,  

(in millions of S/.)

   2010      2011      2012  

Mill no. 7

     34.5         —           —     

Corianta calcination plant(1)

     9.3         2.3         —     

Construction of diatomite brick plant

     18.5         34.5         10.6   

Expansion of Rioja cement plant

     —           32.3         57.2   

Expansion of Pacasmayo cement plant

     —           14.7         16.8   

New cement plant in Piura

     —           —           52.8   

Phosphate project

     10.5         4.5         23.7   

Brine project

     1.5         5.8         18.3   

Carbon mine concession

     —           10.9         —     

Concrete and block business

     —           20.5         4.5   

Other investing activities(2)

     70.7         115.7         86.3   
  

 

 

    

 

 

    

 

 

 

Total

     145.0         241.2         270.2   
  

 

 

    

 

 

    

 

 

 

 

(1) Capital expenditures relate to the conversion of our Waelz rotary kiln to produce zinc and quicklime interchangeably.
(2) Includes overhauls of transmission, cooler system, storage silo, heavy machinery and other.

 

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B. Business Overview

Overview

We are a leading Peruvian cement company, and the only cement manufacturer in the northern region of Peru. With more than 55 years of operating history, we produce, distribute and sell cement and cement-related materials, such as concrete blocks and ready-mix concrete. Our products are primarily used in construction, which has been one of the fastest growing segments of the Peruvian economy in recent years. We also produce and sell quicklime for use in mining operations.

In 2012, we sold approximately 2.2 million metric tons of cement, representing an estimated 21.7% share of Peru’s total domestic cement shipments, and substantially all the cement consumed in the northern region. From 2008 to 2012, our cement sales volume grew at a compound annual growth rate (“CAGR”) of 11.0%. Our performance during this period was driven primarily by growth in the construction sector which over the past five years has expanded, on average, at approximately two times the growth in Peru’s annual GDP. We believe the construction sector will continue to grow with the expected expansion of the economy and the continued housing deficit in the country.

We own two cement production facilities, our flagship Pacasmayo facility located in the northwest of Peru and our smaller Rioja facility located in the northeast. Our facilities have total installed annual cement production capacity of approximately 3.1 million metric tons. We also have installed annual production capacity of 240,000 metric tons of quicklime. We own concession rights to several quarries with reserves of limestone and other raw materials located near our facilities. We estimate that our existing quarries have sufficient reserves to supply us with limestone for approximately 68 years, based on our 2012 limestone consumption levels.

We are working on two projects to increase our cement production capacity: (i) we have more than doubled the cement production capacity of our Rioja facility, which is currently operating at near full capacity, by installing a new production line that adds 240,000 metric tons of installed annual cement production capacity. This expansion is currently on the commissioning stage; and (ii) we are in the basic engineering stage of our new cement plant in Piura, the third largest city in northern Peru, which is expected to have an annual production capacity of 1.6 million metric tons of cement. We have entered into a supply agreement with ThyessenKrupp Polysius and Loesche for the provision of key equipment for this project. These developments will allow us to meet projected increases in demand for cement in the northern region of Peru in coming years.

We provide consumers with high-quality and value-added cement products and, as a result, we believe we have developed strong brand recognition in our market. We have developed one of the largest independent retail distribution networks for construction materials in Peru. Through our network of more than 218 independent retailers and 318 hardware stores, we distribute our cement products as well as other construction materials manufactured by third parties, such as steel rebar, cables and pipes, in the northern region of Peru. We also sell our cement products directly to other retailers that are not part of our distribution network and to private construction companies and government entities.

In addition to our core cement business, we are undertaking two non-metallic mining projects, which we believe present significant growth opportunities for our company. We have discovered phosphate deposits in one of our fields, which contain an estimated 541.4 million metric tons of mineralized material. We are dedicating significant efforts and resources to develop our phosphate project in an effort to capitalize on the potential of its mineral assets. We are in the process of developing the basic engineering study, which we expect will be completed during the second quarter of 2013.

We also have concessions for fields with identified brine deposits. We are in the process of reaching an agreement with the local communities as we simultaneously progress with the basic engineering study.

 

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The following table sets forth certain macroeconomic data for Peru and operating and financial data for our company for the periods indicated.

 

     As of and for the year ended
December 31,
 
     2010     2011     2012  

Economic data(1):

      

GDP growth in Peru

     8.8     6.9     6.3

Construction sector growth in Peru

     17.4     3.4     15.2

Operating data:

      

Capacity (thousands metric tons per year):

      

Installed cement capacity

     3,100        3,100        3,100   

Installed clinker capacity

     1,500        1,500        1,700   

Production (thousands metric tons):

      

Cement production

     1,811        1,946        2,253   

Clinker production

     1,278        1,315        1,368   

Utilization rate at Pacasmayo plant(2):

      

Cement

     55.7     60.4     70.8

Clinker

     86.0     89.2     80.6

Utilization rate at Rioja plant(2):

      

Cement

     98.2     97.5     100.0

Clinker

     79.9     77.5     79.5

Selected financial data (amounts in millions of S/.):

      

Net sales

     898.0        995.0        1,169.8   

Growth in net sales (versus prior period)

     18.7     10.8     17.6

Gross profit

     419.1        425.5        456.8   

Gross profit margin

     46.7     42.8     39.0

Adjusted EBITDA(3)

     296.7        267.2        278.5   

Adjusted EBITDA margin(3)

     33.0     26.9     23.8

Profit(4)

     223.1        65.5        155.6   

Profit margin(4)

     24.8     6.6     13.3

 

(1) Source: Central Bank of Peru.
(2) Utilization rate is calculated by dividing production for the specified period by installed capacity.
(3) For a calculation of Adjusted EBITDA and a reconciliation of Adjusted EBITDA to our profit, see “Item 3. Key Information—A. Selected Financial Data.”
(4) Profit for 2010 includes a net gain of S/.75.9 million from the sale in March 2010 of the Raul copper mine concessions in the central region of Peru that we previously leased to the buyer. In addition, profit for 2011 includes a non-cash loss of S/.96.0 million due to an impairment with respect to our zinc mining assets and S/.4.8 million related to mandatory workers’ profit sharing expenses related to the sale of a minority equity interest in our subsidiary Fosfatos del Pacífico S.A. to an affiliate of Mitsubishi.

Peruvian cement market

Peru has experienced sustained economic growth over the past decade. From 2008 to 2012, GDP grew at a CAGR of 5.7%. Despite the global economic recession, which slowed GDP growth in Peru to 0.9% during 2009, the economy rebounded in 2010 and recorded GDP growth of 8.8%.Growth during the 2008 to 2012 period was accompanied by low inflation, which averaged 3.3% per year. In addition, at December 31, 2012, the government had accumulated foreign exchange reserves of approximately US$64.0 billion, and the sovereign debt achieved an investment grade rating from each of the three major international credit rating agencies. This economic growth has resulted, among other key trends, in significant poverty reduction, with a decrease in the percentage of the country’s population living below the poverty line from approximately 48.6% in 2004 to approximately 27.8% in 2011. According to the Central Bank of Peru, the Peruvian economy is estimated to have grown at a rate of 6.3% through 2012 and is projected to grow at a rate of 6.2% in 2013

 

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We sell substantially all our cement in the northern region of Peru, which in 2012 accounted for approximately 23.2% of the country’s population and 14.8% of national GDP. Two other groups sold substantially all the cement consumed in each of the central and southern regions of Peru, with less than 5% of all the cement consumed in the country coming from imports. From 2008 to 2012, total cement consumption in Peru grew at a CAGR of 10.1%, according to the INEI, driven by the country’s overall economic growth and, to a lesser extent, by infrastructure spending. In the northern region, cement consumption grew at a CAGR of 11.0% over the same period. Despite this recent growth, Peru continues to have a significant housing deficit, estimated by the Ministry of Housing, Construction and Sanitation at 1.9 million homes nationwide as of December 31, 2011.

In Peru, cement is mainly sold to a highly fragmented consumer base, consisting primarily of households that buy cement in bags to gradually build or improve their own homes without professional technical assistance, a segment known in our industry as auto-construcción . We estimate that in 2012 sales to the auto-construcción segment accounted for approximately 57% of our total sales of cement, private construction projects accounted for 26% and public construction projects accounted for the remaining 17%. Approximately 92% of our total cement sales in 2012 were in the form of bagged cement, substantially all of which was sold through retailers.

Our phosphate and brine projects

In the process of securing quarries of raw materials for our cement operations, in 2007 we acquired a diatomite concession in a field located in Bayóvar in the northwest of Peru where our geologists have discovered significant deposits of phosphate rock. According to an independent study prepared by Golder Associates Peru S.A. in August 2011, this field contains an estimated 541.4 million metric tons of mineralized material based on wet density, with an average grade of 18.5% of P2O5 (phosphorus pentoxide). Phosphate concentrates are primarily sold as a fertilizer nutrient in agriculture, which we believe will continue to benefit from rising global food consumption driven by the growing per capita income in emerging countries. In December 2011, we sold a 30.0% equity interest in our subsidiary Fosfatos, which focuses on our phosphate operations, to an affiliate of Mitsubishi, a global integrated business enterprise listed on the Tokyo Stock Exchange that develops and operates businesses across multiple industries, for an aggregate purchase price of approximately US$46.1 million. Mitsubishi is a world leading marketer of phosphate-derived products. In connection with the sale, Mitsubishi has entered into an off-take agreement to purchase Fosfatos’ production of phosphate ore. Under the off-take agreement, Mitsubishi agreed to purchase, once we begin production, 2.0 million metric tons of phosphate ore annually, and has the option to purchase an additional 0.5 million metric tons annually, to the extent we choose not to sell it to the Peruvian market, at a price to be determined pursuant to an agreed upon formula based on prevailing market prices. The off-take agreement has a term of 20 years, with an option for Mitsubishi to extend the term for an additional 5 years upon expiration. We believe this is one of the most significant foreign investments by a major international company in Peru’s phosphate sector.

We believe our phosphate project provides significant opportunities to expand our revenue streams, diversify our portfolio of products and improve our profitability, and we intend to dedicate substantial efforts to developing this project. Pending completion of basic-engineering studies, we believe that our phosphate project could be in operation in the next three or four years. We are currently in the stage of basic engineering studies which are being conducted by Golder Associates on the mine, a consortium of FL Smidth Minerals—Jacobs—Golder Associates on the plant, Berenguer Ingenieros on the port, and Pepsa Tecsult and Aecom on the electrical transmission and the water.

We also own concession rights to fields in the coastal region in the northwest of Peru, which, according to our internal geologists, contain brine deposits. We entered into an agreement with Quimpac, a leading chemical company in Peru, pursuant to which we formed Salmueras, a project company in which we own a 74.9% equity interest and Quimpac owns the remaining 25.1%. Under the agreement, we contributed our brine concessions located in the fields of Ñamuc and El Tablazo and committed to invest US$100 million to the project, while Quimpac contributed its brine concessions located in the Cañacmac field and may contribute approximately US$14.2 million to the project to maintain its current equity interest. Our combined brine concessions cover 136,245 hectares of land. Brine is used to produce chemical components, which have a wide variety of agricultural and industrial uses, such as in fertilizers, animal feed and construction.

 

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In the Brine project the basic engineering study is being conducted by the German company, K-Utec AG Salt Technologies. Due to the complexity of our brine project and in accordance with our strategy of disciplined capital expenditures, in order to develop this project we must first obtain the results of the basic engineering study and the local communities agreements for the exploitation of the mineral resources.

These projects require significant capital investments and as we have not yet completed feasibility studies, we cannot assure that we will be able to produce and sell these products profitably or at all.

Competitive Strengths

Our principal competitive strengths include the following:

Track record of cash flow generation and strong results through multiple business cycles. We have historically generated strong cash flow and high profit margins mainly due to the following key factors:

 

   

our leadership position in the northern region of Peru;

 

   

our extensive distribution network, operational flexibility and efficiency, and focus on innovation; and

In 2012, we generated cash flow from operating activities of S/.99.7 million (US$39.1 million) and EBITDA of S/.278.5 million (US$109.2 million), and our operating and EBITDA margins were 19.7% and 23.8%, respectively. In addition, we have achieved significant increases in cement production volumes and revenue growth while maintaining low levels of indebtedness. As of December 31, 2012, we had S/.215.5 million (US$84.5 million) of indebtedness and our leverage ratio was negative.

Leader in attractive and expanding market with solid macroeconomic fundamentals. We are currently the only cement manufacturer in the northern region of Peru and we produce and sell substantially all of the cement consumed in the region. In 2012, the northern region accounted for approximately 23.2% of the country’s population and 14.8% of its GDP. From 2008 to 2012, GDP in the northern region grew at a CAGR of 4.9%. During the same period, our cement production and sales volume grew at a CAGR of 11.0%. Despite this recent growth, the northern region continues to experience significant housing and infrastructure deficits which we expect will continue to drive demand for cement in coming years.

Best-in-class operating efficiencies with vertical integration and strong brand recognition. Our quarries are located in close proximity to our plants, enabling us to minimize transportation costs. We strive to enhance our operational efficiency by focusing on lowering costs and improving profitability. We also benefit from our vertically integrated operations, participating in the entire chain of production from the quarries which we own directly, to the related products such as quicklime, ready – mix, precast and our large distribution network. We have developed one of the largest independent retail distribution networks for construction materials in Peru, known as “DINO,” consisting of 218 independent retailers with 318 hardware stores, primarily small, local stores in the northern region, through which we distribute our cement products as well as construction materials manufactured by third parties. We use our distribution network, together with our strategically located commercial offices, to promote our products and stay abreast of market developments. We have developed this network through years of fostering relationships with retailers in the region, which we believe would be difficult for a competitor to replicate. Our distribution network has enabled us to build strong recognition for our Pacasmayo brand among retailers and end-consumers in our market, which we believe is important to our business, particularly because our cement is principally sold in bags to retail consumers.

Disciplined capital expenditure plan with attractive risk / return profile. We seek to minimize risk while securing an adequate return on our development projects. We are currently developing two projects to increase our cement production capacity (expansion of our Rioja plant and development of a new plant in Piura) and projects to explore phosphate and brine. We are in the basic engineering stage of our new cement plant in Piura, the third largest city in northern Peru, and we entered into a supply agreement with ThyessenKrupp Polysius and Loesche for the provision of key equipment for this project. This development will allow us to meet projected increases in the regional demand for cement in coming years. In 2011, we sold 30% of our interest in our subsidiary Fosfatos del Pacífico S.A. (“Fosfatos”) to an affiliate of Mitsubishi and entered into an off-take agreement with the same company to sell our production of Phosphate ore.

 

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In 2010, we also entered into an agreement with Quimpac, a leading chemical company in Peru, pursuant to which we jointly formed Salmueras Sudamericanas S.A. (“Salmueras”), a vehicle to jointly exploit a project relating to our brine concessions. The phosphate project is in the basic engineering stage. The development studies are being undertaken by Golder Associates relating to the mine, a consortium of FL Smidth Minerals—Jacobs—Golder Associates relating to the plant development, Berenguer Ingenieros relating to the port, and Pepsa Tecsult and Aecom relating to the electrical transmission and water. Our Brine project the basic engineering study is being conducted by the German company, K-Utec AG Salt Technologies. Due to the complexity of our brine project and in accordance with our strategy of disciplined capital expenditures, in order to develop this project we must first obtain the results of the basic engineering study and the local communities agreements for the exploitation of the mineral resources.

Emphasis on innovation. We place significant emphasis on research and development to ensure our products meet the needs of consumers in our market and to improve the efficiency of our operations. For example, we have developed cement products suitable to coastal construction that tend to be more exposed to erosion from sulfate. We believe that, by educating retailers and end consumers of these attributes of our products, we have been successful in building demand and realizing higher margins for our differentiated product offering. In addition, through our dedicated team of geologists and scientists, we have significantly reduced the amount of clinker required for our cement production by substituting clinker with other natural minerals or additives, while maintaining the quality of our cement products. Our reduced use of clinker minimizes capital expenditures that would otherwise be required to increase our cement production capacity, and reduces our carbon dioxide emissions (CO 2 ), consistent with our commitment to the environment.

Know-how to develop our phosphate and projects. We are highly experienced and knowledgeable in open-pit mining and industrial processes as a result of our core cement business, and we believe this know-how will enable us to develop our brine and phosphate project, as we seek to capitalize on their value for our company. Moreover, because of our close and long-standing relations with local communities, we believe we have the credibility to obtain local support for our projects, which is essential to their success. Due to our long operating history, market position and reputation, we have been able to team up with high quality strategic partners with expertise in areas that complement our core competencies to develop our projects. For our phosphate project, we have partnered with a world leading marketer of phosphate-derived products, and for our brine project we have partnered with a leading chemical company in Peru.

Strong relationship with local communities. Since we began operations 55 years ago, we have had a strong commitment to improving the quality of life of the local communities surrounding our plants, whose members we regularly employ. As a result, we have developed close and cooperative relationships with the local communities, which are supported by several social responsibility initiatives we have undertaken. For example, the family of our controlling shareholder founded, and we and Hochschild Mining plc continue to fund, Asociación Tecsup, a leading non-profit institute in Peru that provides technical education to high-school students. We provide scholarships and financial aid to local qualified students interested in studying at Tecsup. Through its three campuses in Peru, Tecsup has graduated over 7,000 students in various technical fields, some of whom now work for us and our affiliates.

Highly experienced and professional management and board of directors. Our management team, with an average of 15 years of experience in the cement industry in Peru, has extensive technical and local market expertise and has led our company through our recent growth. We have developed a strong professional business culture and a team of highly qualified executives. We also have a well-regarded and experienced board of directors that includes some of Peru’s business leaders and former senior government officials. Four of our nine directors are independent.

Strong corporate governance standards and international recognition . Our shares of common stock are listed on the Lima Stock Exchange and our American depositary shares (“ADSs”), each representing five of our common shares, are listed on the New York Stock Exchange. We are subject to SEC and SMV disclosure requirements and must comply with and adopt internal compliance standards to increase transparency and improve corporate governance standards including an audit committee and appointment of independent directors. We have been selected to form part of the Best Corporate Governance Practices Index of the Lima Stock Exchange, which is currently comprised of 10 listed companies.

 

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Additionally, in 2012, we received the Top Social Responsibility Award ( Distintivo de Empresa Socialmente Responsable ), in recognition of our having achieved our corporate goals in a socially responsible manner, a principle that is ingrained in our corporate culture and business strategy.

Our Strategies

Our objective is to maximize shareholder value, while honoring our commitment to the environment and abiding by our social responsibility goals. We intend to achieve our objective through the following principal strategies:

Continue to focus on our core business of supplying the rising demand for cement. We plan to continue to meet the increasing demand for cement in our market, while controlling production costs. We intend to increase our production capacity through the expansion of our installed cement and clinker capacity. In line with this strategy, we are on target to complete the planned expansion of our new cement plant in Piura, having committed investments of approximately US$113.4 million related to a supply agreement with ThyssenKrupp Polysius and Loesche for the supply of key equipment. Our principal goal is to maintain our market share in the northern region of Peru without reducing the profitability of our business.

Enhance operational efficiencies to reduce production costs. We intend to continue developing operational efficiencies in an effort to reduce costs and increase our operating margins. Our principal efficiency initiative is to reduce energy costs by securing our own source of coal. In 2011, we exercised certain of our options to purchase coal mining concessions in the north of Peru, and we replaced a high proportion of our use of imported bituminous coal, which generally is more expensive, with anthracite coal produced locally.

Deepen our commercial relationship with retailers and end-consumers. We plan to enhance our commercial relationships with retailers and end-consumers in our market, both to maintain brand loyalty and to foster demand for our cement products. We will continue to support retailers in our DINO distribution network by providing product education, training sessions, rewards programs, and assistance in financing purchases of our products. We believe that these initiatives have been successful in strengthening our relationship with retailers and end-consumers. In addition, we have intensified our door-to-door commercial strategy for cement sales and, as of December 31, 2012, approximately 97% of our cement sales were sold under this system. We believe that these initiatives have been successful in strengthening our relationship with retailers and end-consumers.

Continue to focus on being the preferred provider of building solutions. We strive to be the supplier of choice for cement consumers in the northern region of Peru, whether households building their homes or private construction companies or governmental entities undertaking projects of any size. We continue to focus on providing consumers with efficient and customized building solutions for their construction needs. Over the past several years, we have evolved from being a single type cement manufacturer to offering five different types of cement products and other building solutions. For example, we offer cement that contains special properties that protect against sulfate erosion, as well as other products designed to meet the needs of consumers in the northern region of Peru. We dedicate significant resources to developing new products that meet evolving market demands through product research and development.

Develop our non-core mineral assets. In addition to our core cement business, we are undertaking two non-metallic mining projects, which we believe present significant growth opportunities for our company. We have discovered phosphate deposits in one of our fields, which contain an estimated 541.4 million metric tons of mineralized material. We are dedicating significant efforts and resources to develop this project in an effort to capitalize on the potential of these mineral assets. We are in the process of completing the basic engineering study, which we expect will be completed during the second quarter of 2013. We also have concessions for fields with identified brine deposits. We are in the process of obtaining the local communities’ agreement, as we continue progressing with the basic engineering study. We believe that, if we are able to extract these minerals in a profitable manner, these projects could provide us an alternate source of revenue, diversify our portfolio of products and improve our profitability.

 

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Selectively pursue acquisitions. We will continue to evaluate and may selectively pursue strategic acquisitions of cement and complementary businesses that expand our geographic footprint and diversify our portfolio of products. Our management team has significant operating experience and industry knowledge in the production and commercialization of cement and cement-related materials, and we believe this experience will enable us to identify and pursue attractive acquisitions that will maximize shareholder value.

Our Products

Our core products are cement and other cement-related materials. We also produce quicklime. In 2012, cement, concrete and blocks accounted for 83.1% of our net sales and quicklime accounted for 4.5%. We also generate sales by selling and distributing construction materials, such as steel rebar, cables and pipes, manufactured by large third-party manufacturing companies, which in 2012 represented 12.2% of our net sales.

The following table sets forth a breakdown of our shipments by type of product for the periods indicated:

 

     Year ended December 31,  

(in thousands of metric tons)

   2010      2011      2012  

Cement, concrete and blocks

     1,805         1,937         2,258   

Quicklime

     121         93         101   

Zinc calcine

     5         1         —     
  

 

 

    

 

 

    

 

 

 

Total

     1,931         2,031         2,359   
  

 

 

    

 

 

    

 

 

 

The following table sets forth a breakdown of our total net sales by product for the periods indicated:

 

     Year ended December 31,  

(in millions of S/.)

   2010      2011      2012  

Cement, concrete and blocks

     728.3         803.0         972.2   

Quicklime

     57.7         45.9         52.7   

Construction supplies(1)

     96.1         143.3         143.2   

Others(2)

     15.9         2.8         1.7   
  

 

 

    

 

 

    

 

 

 

Total

     898.0         995.0         1,169.8   
  

 

 

    

 

 

    

 

 

 

 

(1) Refers to construction materials manufactured by third parties.
(2) Principally zinc calcine.

Cement

Cement is a powdered mixture of ground minerals that, when mixed with water, adheres to other materials and hardens to form a rock-like substance. Cement is generally mixed with other materials, such as gravel and sand, forming concrete with a high degree of compressive strength that is able to withstand substantial pressure.

Cement types are generally classified as either portland cement or blended hydraulic cement. Portland cement is a hydraulic cement produced by pulverizing clinker, consisting essentially of crystalline hydraulic calcium silicates and calcium sulfate. Blended hydraulic cement consists of a mixture of portland cement clinker and mineral admixtures, such as burn furnace slag, pozzolan and limestone.

We produce both types of cement in a range of cement products suitable for various uses, such as residential and commercial construction and civil engineering. We currently offer the following five types of cement products designed for specific uses.

 

   

Type I. This type of cement is for general purposes and suitable if special properties are not needed. It is generally used for constructing pavements, floors, reinforced concrete buildings, bridges, reservoirs, pipes, masonry units and precast concrete products.

 

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Type V. Type V cement is used in concrete exposed to severe sulfate action, principally in places where soil or ground water has a high sulfate content. It is generally used for hydraulic constructions, such as irrigation canals, tunnels, water conduits and drains.

 

   

Type MS. This type of cement is used to protect against moderate sulfate action, such as drainage structures, with higher-than-normal, but not unusually severe, sulfate concentrations in ground water. It is designed for sites and structures in humid areas that are exposed to sulfates and sea water. Due to its mineral admixtures, Type MS cement results in less permeable structures with a greater chemical resistance that protects against sulfates and chlorides.

 

   

Type HS. Type HS cement is used in concrete that is exposed to severe sulfate action, principally where soil or ground water has high sulfate content. It is recommended for port constructions, industrial plants and construction of sewage sites. Our Portland Type HS cement has low reactivity with alkali-reactive aggregates, making it more durable than other types of cement.

 

   

Type ICo. This type of cement is used for general purposes and is similar to Portland Type I cement. It is widely used in our market due to its effectiveness and low hydration heat.

We believe that our Type V, MS and HS cement products are particularly suitable for construction in the northern coastal region of Peru, where sulfate and chloride concentrations from soil, ground water and sea water affect the durability of construction structures. By educating retailers of the different cement characteristics and conducting marketing campaigns, we believe we have been successful in building demand for our cement products. Our research and development department is also equipped to produce custom-tailored cement products on demand. In addition, through our dedicated team of geologists and scientists, we have significantly reduced the amount of clinker required for cement production minimizing our capital expenditures and significantly reducing our carbon dioxide emissions (CO 2 ). We market and distribute our cement primarily in 42.5 kilogram bags. Most of our bagged cement is sold to the retail sector consisting primarily of households who buy bags of cement to build their own homes with little or no formal technical assistance. The bags are made of kraft paper to preserve the quality of the cement. Our bags include information relating to the composition of our cement, handling instructions, production dates and storage instructions. Our cement bags have different colors to easily identify the different types of cement. Once bagged at our Pacasmayo and Rioja facilities, our cement is loaded onto trucks operated by third parties. Cement in bulk is sold to large industrial consumers.

Concrete Products

We also produce and sell concrete products principally in the form of ready-mix concrete used in large construction sites, as well as blocks, bricks and pavers.

 

   

Ready-mix concrete. Ready-mix is a blend of cement, aggregates (i.e., sand and stone), admixtures and water. It is manufactured and delivered to construction sites in a form that is ready to use. This mixture hardens to form a building material, ranging from sidewalks to skyscrapers. We have fifteen fixed and mobile ready-mix plants.

 

   

Concrete blocks. We produce and sell concrete blocks, such as paving units, or paver stones for pedestrian walkways, as well as other bricks for partition walls and concrete blocks for structural and non-structural uses.

Quicklime

We produce and distribute quicklime, which has several industrial uses. Quicklime serves as a neutralizer, lubricant, drying and absorbing material, disinfectant and as raw material. Quicklime has various applications, including in the steel, food, fishing and chemical industries. It is also used in mining operations to treat water and industrial residues, in agriculture as a fertilizer enhancer, and to a lesser extent, in other industries. In Peru, quicklime is mainly used in the mining industry, as an additive to treat water residues. We produce quicklime in finely and coarsely ground varieties and sell it in three forms: (i) 40 kilogram bags, (ii) bags of one metric ton and (iii) in bulk for larger construction projects.

 

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Zinc Calcine

We produced zinc calcine until 2011. Zinc ore extracted from our zinc mine concessions was crushed and mixed with anthracite coal which was then calcinated in our Waelz rotary kiln. We sold zinc calcine to local refineries that produce zinc. Zinc is a metal that is commonly used to prevent corrosion and is often used in galvanization, the process of coating iron or steel metals with rust resistant zinc.

To optimize the use of our Waelz rotary kiln, in 2010 we retrofitted it to produce both zinc calcine and quicklime interchangeably.

The operations at our zinc mines have been suspended since July 2008. We subsequently continued to produce small quantities of zinc calcine depleting our inventory of extracted zinc ore. However, in 2012, we did not produce any zinc calcine.

Due to a sudden and sharp drop in the international price of zinc in September 2011 and based on our future expectation of zinc prices, we have recorded an impairment of approximately S/.96.0 million during 2011 with respect to our zinc mining assets.

Production Process

Cement Production Process

The diagram below depicts the standard cement production process, which consists of the following main stages: extraction and transportation of limestone from the quarry; grinding and homogenization to make the raw material of consistent quality; clinkerization; cement grinding; storage in silos; and packaging, loading and distribution.

 

LOGO

 

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Extraction of raw materials. To produce cement, limestone is extracted from our quarries. We use explosives to loosen the limestone and deploy bulldozers to remove dirt and the overburden covering the limestone. We crush the limestone in our primary and secondary cone crusher and the resulting limestone is loaded into trucks and hauled to our Pacasmayo or Rioja facilities from the adjacent quarry where it is stored.

Grinding and homogenization. Limestone, clay and sand are mixed with iron that is acquired from third parties. The quality of the resulting raw meal is monitored by examining samples of each batch and processing them through our quality control x-ray software that automatically measures the mix of materials to confirm the blend is in compliance with our quality standards. Subsequently, the raw meal is sent to a blending silo and then to a storage silo from where it is fed into the pre-heater.

Clinkerization. The raw meal is heated at a temperature of approximately 1,450 degrees Celsius in our kilns. The intense heat causes the limestone and other materials in the mixture to react inside the kiln, turning the mixture into clinker. Clinker is then cooled to a temperature of approximately 200 degrees Celsius and stored in a silo or in an outdoor patio.

Cement grinding. After being cooled, clinker, together with gypsum and some admixtures, is fed into a ball mill or into a vertical roller mill where it is ground into a fine powder to produce cement. In this form, cement reacts as a binding agent that, when mixed with water, sand, stone and other aggregates, is transformed into concrete or mortar.

Storage in silos. After passing through the ball mills, the cement is transferred on conveyor belts and stored in concrete silos in order to preserve its quality until distribution.

Packaging, loading and transport. Cement is transferred through another conveyor belt from the silo to be packaged in 42.5 kilogram bags and loaded into trucks operated by third parties to be transported for distribution. Bulk cement may be transported (unpackaged) on especially designed trucks that deliver large amounts of cement directly to the work site.

Quicklime Production Process

Quicklime is produced by crushing limestone with a calcium carbonate content of at least 95% by calcinating it in a rotary kiln. The limestone for quicklime comes from our quarries. The crushing of the limestone is done at the quarry and the calcination process takes place only at our Pacasmayo facility. We produce quicklime in finely and coarsely ground varieties and sell both varieties in bags of 40 kilograms and up to one metric ton, as well as in bulk.

Zinc Calcine Production Process

Zinc oxide ore is ground and mixed with anthracite coal in a ratio of 1:0.6. The mixture is then fed into a Waelz rotary kiln as pellets for calcination. The Waelz rotary kiln is used to process zinc oxide ore that reacts with anthracite coal, burning the zinc oxide ore and transforming it to zinc calcine.

Raw Materials and Energy Sources

Limestone

We obtain limestone required to produce clinker and quicklime principally from land where we have concession rights. For our Pacasmayo plant, we extract limestone from our Acumulación Tembladera quarry located approximately 60 kilometers from the plant, and for our Rioja plant, we extract limestone from our Calizas Tioyacu quarry which is adjacent to our Rioja plant.

Acumulación Tembladera. We have a concession to extract limestone and other minerals from our Acumulación Tembladera quarry, a 3,390 hectare open-pit mine located in the district of Yonan, in the department of Cajamarca. We acquired this concession in November 2002.

 

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Calizas Tioyacu. For our Rioja production, we have a concession to extract limestone and other minerals from a 400 hectare open-pit mine near our Rioja facility in the district of Elias Soplin Vargas, in the department of San Martin. We acquired this concession in February 1998.

In each of our limestone concessions, the term of the concession is indefinite, provided we pay an annual concession fee and a penalty fee if we fail to meet required minimum annual production levels. Failure to pay such fees in a timely manner for two consecutive years will cause us to forfeit our concession titles. As of the date of this annual report, we have fully paid all applicable fees on our operating concessions.

We extracted from our Acumulación Tembladera quarry approximately 3.0 million metric tons of limestone, in 2010, 2.6 million metric tons in 2011 and 2.2 million metric tons in 2012, which were used for cement and quicklime production in our Pacasmayo facility. We extracted from our Calizas Tioyacu quarry approximately 307,400 metric tons of limestone in 2010, 336,722 metric tons in 2011 and 353,794 metric tons in 2012, which were used for cement production at our Rioja facility.

We estimate that as of December 31, 2012 our Acumulación Tembladera quarry contains approximately 118.2 million metric tons with an average grade of 85.70% of calcium carbonate of proven and probable limestone reserves, and our Calizas Tioyacu quarry contains approximately 9.5 million metric tons of proven limestone reserves with an average grade of 90.25% of calcium carbonate. Based on limestone consumption at 2012 levels, we estimate that our limestone reserves at our Acumulación Tembladera quarry have a remaining life of approximately 71 years and our limestone reserves at our Calizas Tioyacu quarry have a remaining life of approximately 32 years. On a combined basis, we estimate that our two quarries have a remaining life of approximately 68 years. Our estimates were prepared by our internal engineers and geologist and are reviewed periodically.

In addition to our Acumulación Tembladera and Calizas Tioyacu quarries, we also own concession rights to various other limestone quarries consisting, in the aggregate, of approximately 51,300 hectares located in the northern region of Peru. None of these quarries are in operation as of the date of this annual report.

Clay, Sand and Other Raw Materials and Admixtures

The other raw materials that we use to produce clinker are clay, sand, iron and diatomite.

Clay

For cement production in our Pacasmayo facility, we extract clay from our Señor de los Milagros de Pacasmayo quarry, a 400 hectare open-pit concession located in the district and province of Pacasmayo, department of La Libertad. We were granted this concession by the Ministry of Energy and Mines in 1996. The term of the concession is indefinite, provided we pay an annual concession fee and meet minimum annual production requirements. We extracted from our Señor de los Milagros de Pacasmayo quarry approximately 130,096 metric tons of clay in 2010, 116,461 metric tons in 2011 and 107,468 in 2012.

For cement production in our Rioja facility, we extract clay from our Pajonal 2 quarry, a 400 hectare open-pit concession located in the district and province of Rioja, department of San Martin. This concession was granted to us by the Ministry of Energy and Mines in 1998. The term of the concession is indefinite, provided we pay an annual concession fee and meet minimum annual production requirements. We extracted from our Pajonal 2 quarry approximately 28,292 metric tons of clay in 2010, 32,825 metric tons in 2011 and 47,819 metric tons in 2012.

We have not calculated our clay reserves, as we believe there is an abundant supply of clay in our concessions and more broadly in the northern region where we operate.

Sand

For cement production in our Pacasmayo facility, we use sand extracted from our Señor de los Milagros de Pacasmayo quarry. We extract approximately 100,000 metric tons of sand per year for use at our Pacasmayo facility. Our Rioja facility does not utilize sand as a raw material given the type of cement it produces.

 

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We have not calculated our sand reserves, as we believe there is an abundant supply of sand in our concessions and more broadly in the northern region where we operate.

Iron and diatomite

We use small quantities of iron and diatomite in our cement production, which we purchase from third parties at market prices. We are also in the process of installing a small diatomite plant in our Bayóvar field, where we expect in the future to obtain all of the diatomite required for our cement production.

Pozzolanic materials and other admixtures

Our cement production also requires small amounts of other admixtures, such as pozzolanic materials, gypsum and blast furnace slag.

For cement production in our Pacasmayo facility, we use pozzolanic materials obtained from our Cunyac quarry, a 200 hectare open-pit concession located in the district of Sexi, province of Santa Cruz, department of Cajamarca. The concession was granted to us by the Ministry of Energy and Mines in 2008. The term of the concession is indefinite, provided we pay an annual concession fee and meet minimum annual production requirements. We began using pozzolanic material at our Pacasmayo facility in 2010 and obtained from our Cunyac quarry approximately 120,271 metric tons of pozzolanic material in 2011. We did not use pozzolanic materials to produce cement in 2012.

For cement production in our Rioja facility, we use pozzolanic materials obtained from our Fila Larga quarry, a 1,000 hectare open-pit concession located in the district of El Milagro, province of Utcubamba, department of Amazonas. The concession was granted to us by the Ministry of Energy and Mines in 1998. We obtained from our Fila Larga quarry approximately 33,729 metric tons of pozzolanic material in 2010, we did not use pozzolanic materials to produce cement in 2011 and 2012.

We also own several other concessions containing pozzolanic material which have not been exploited. In addition, our use of pozzolanic materials may be substituted with clinker or other admixtures.

Other admixtures, such as gypsum and blast furnace slag, are purchased at market prices from third-party suppliers.

If we are unable to acquire raw materials or admixtures from current suppliers, we believe that other sources of raw materials and admixtures would be available without significant interruption to our business.

Imported Clinker

As a result of the strong demand in the cement market in the northern region of Peru and the corrective maintenance of our principal kiln in 2012, we started using imported clinker. In 2012, we used approximately 208,708 metric tons of imported clinker and we expect to continue using this material until the new cement plant in Piura is completed.

Energy Sources

Our main energy sources are fuel in the form of coal and electricity. Our production processes consume significant amounts of energy, because our kilns must reach extreme temperatures to produce clinker and quicklime. In addition, milling operations, homogenization and transportation of materials consume significant amounts of energy.

Coal

We purchase anthracite coal from local suppliers and import bituminous coal from suppliers mainly in Colombia, in each case at spot market prices. Anthracite coal tends to be less expensive than bituminous coal. We

 

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store coal at our premises and in our warehouse facility adjacent to the Salaverry port, located approximately 130 kilometers south of our Pacasmayo facility, where we have sufficient stock of bituminous coal to maintain our production levels for the next year.

In December 2009 and February 2010, we entered into option agreements to acquire coal mining concessions to secure a steady and reliable source for our coal requirements and to reduce our energy costs related to coal. In 2011, we exercised certain options under these agreements to acquire coal mining concessions for 908.45 hectares near our Pacasmayo facility for a total purchase price of US$4.5 million. We have until April 2014 to exercise our remaining options to purchase an additional coal mining concession for 501.24 hectares for US$1.0 million. We expect to start exploiting this mine during 2014.

Electricity

As of December 31, 2012, all of the electricity requirements for our Pacasmayo facility were supplied by Electroperú and for our Rioja facility by ELOR.

We have a long-term electricity supply contract with Electroperú for a term of ten years, ending in December 2020. Electroperú has agreed to provide us with sufficient energy to operate our Pacasmayo facility at pre-determined maximum amounts during the term of the contract. Payments for electricity are based on a formula that takes into consideration our energy consumption and certain market variables, such as the U.S. purchase price index, the global price of oil, the local price of natural gas and the import price of bituminous coal.

In addition, we have a long-term electricity supply contract with ELOR to supply the Rioja facility for a term that ends in November 2016. ELOR supplies the Rioja facility with 3.4 megawatts of electricity at peak hours and 3.7 megawatts at non-peak hours. Payments for electricity are based on a formula that takes into consideration our energy consumption and certain market variables, such as the U.S. dollar price, the local price of natural gas, the global price of oil and the import price of bituminous coal.

Other Production Materials

We use other materials in the cement production process, including paper bags to package cement, which we purchase principally from suppliers in Peru, Ecuador and Austria; plastic bags used to package limestone, which we purchase from various suppliers in Ecuador, Peru and Chile; and water to cool the kiln exhaust gases and for our crushing operations at our Acumulación Tembladera quarry, which we obtain principally from a well located at our Pacasmayo facility and from the Jequetepeque river. Water used in our production process is maintained in a closed system at our plants and re-processed for utilization in our production process.

Consumer Base

The retail cement sector in Peru is characterized by households that purchase single bags of cement to gradually build or improve their homes with little or no professional assistance. This sector is known as auto-construcción . Families in this sector tend to invest a large portion of their savings in building or improving their own homes. Auto-construcción is often conducted with the help of a builder ( maestro de obra ) who generally has experience in construction. Our retail marketing plans typically target the maestro de obra who is usually the decision maker when buying cement and other related construction materials.

We also sell directly to small, medium and large private construction companies working on a variety of construction projects, from housing complexes to commercial developments. In the public sector, we sell to national, regional and local governments carrying out construction projects including housing complexes and public construction, ranging from local schools and hospitals to large irrigation projects.

 

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Sales and Distribution

Distribution

Our market extends from the Ecuadorian border in the north of Peru to the city of Barranca in the south (approximately 180 kilometers north of Lima), to the Andes mountains in the east and the Pacific Ocean in the west. Our market covers the provinces of Amazonas, Cajamarca, La Libertad, Lambayeque, Piura and Tumbes in the north; and San Martín and Loreto in the northeast.

Our Pacasmayo facility supplies the entire northern region of Peru from Tumbes to Casma and Huarmey. Our Rioja facility supplies the cities of Jaen, Chachapoyas, Pedro Ruiz, Nuevo Cajamarca, Rioja, Moyobamba, Tarapoto and Yurimaguas.

In 2012, approximately 92% of our total cement shipments were in the form of bagged cement, substantially all of which was sold through retailers both within and outside of our distribution network. The remaining 8% of our cement was sold in bulk or in shipments of concrete blocks or ready-mix concrete directly to large construction companies.

We have developed one of the largest independent retail distribution networks for construction materials in Peru, consisting of more than 318 local hardware stores, with whom we have a distribution agreement. In addition, we also distribute to other independent retailers located throughout the northern region of Peru with whom we do not have contractual relationships. We have built our distribution network by investing in strengthening our relationship with retailers.

Additionally, we sell and distribute other construction materials manufactured by third parties that are used with cement, such as steel rebar, plastic pipes and electrical wires, among others.

Marketing and Brand Awareness

We use our distribution network, together with our strategically located local commercial offices, to promote our products and brands, as well as to keep us informed of market developments. We believe our distribution network has enabled us to build strong recognition for our Pacasmayo brand among maestros de obra , retailers and end consumers which we believe is important to our business, particularly because our cement is principally sold in bags to retail consumers.

Our marketing expenses in 2012 were approximately S/.10.8 million, or 0.9% of our net sales. Historically, our marketing strategy has been to develop brand loyalty by providing high-quality products, tailored to the needs of our customers, and customer service accompanied by complimentary training for the maestros de obra , who are typically the decision makers in the auto-construcción segment.

To maintain and improve our relationship with retailers, we have developed several loyalty and incentive programs designed for our distribution network. For instance, members of our distribution network can redeem points for various prizes, ranging from computers to trucks. We have also partnered with Scotiabank to provide our customers with small loans to help finance the purchase of our products.

Quality Control

In Peru, cement production is subject to standardization ( normalización ) regulations approved by the National Institute for the Protection of Competition and Intellectual Property ( Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual , or “INDECOPI”). Although the standardization regulations are not mandatory, they are useful in achieving an optimum level of management. As of the date of this annual report, there are 81 standardization regulations approved by INDECOPI in connection with the production of cement and its commercialization. We are currently in compliance with all standardization regulations applicable to our products.

 

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We have established a quality assurance program in accordance with ISO Standard 9001-2008, certified by SGS del Perú S.A.C., a company that provides inspection, verification, testing and certification services.

We monitor quality at every stage of the cement production process. In our Pacasmayo and Rioja facilities, we periodically test the quality of our raw materials. These tests include chemical, physical and x-ray tests. We perform similar examinations of the clinker we produce. Additionally, we also perform regular quality tests on our finished products.

We have a quality control area with computerized systems to access real-time information on the quality of our products. As part of our quality control process, we monitor the performance of our different cement products, monitor the performance of additives in our cement and review monthly statistical analysis on the resistance of cement, among other things.

Competitive Position

Peru’s cement production is segmented into three principal geographic regions: the northern region, the central region, including Lima’s metropolitan area, and the southern region. We are the only cement manufacturer in the northern region of Peru. UNACEM (formerly known as Cementos Lima and Cemento Andino) principally serves the central region and Cementos Yura and Cementos Sur operate in the southern region. In 2012, we sold approximately 2.2 million metric tons of cement, representing an estimated 21.7% share of Peru’s total domestic cement shipments, and substantially all the cement consumed in the northern region of Peru.

Regulatory Matters

Overview

Although our core business is the production of cement, we hold a number of mining concessions granted by the Peruvian government for the supply of limestone and other raw materials required for cement production. As a result, we are subject both to the mining and the general industrial legal framework in Peru.

The regulatory framework applicable to our cement production may be divided into rules and regulations relating to (i) the mining and crushing of limestone and clay, and (ii) the production process.

Mining Regulations

The General Mining Law ( Texto Único Ordenado de la Ley General de la Minería ) approved by Supreme Decree No. 014-92-EM, published in the Peruvian Official Gazette, El Peruano , on June 3, 1992, is the primary law governing both metallic and non-metallic mining activities in Peru and is supplemented by implementing guidelines and policies regarding mining and the processing of minerals enacted by the Ministry of Energy and Mining. Under the General Mining Law, mining activities (except storage, reconnaissance, prospecting and trade) are carried out exclusively through various forms of concessions. Of the concessions available under law in Peru, we currently hold mining and mineral processing concessions. Mining concessions are granted by the Geological, Mining and Metallurgical Institute ( Instituto Geológico Minero y Metalúrgico , or “INGEMMET”), and all other concessions, including our mineral processing concessions, are granted by the Directorate General for Mining of the Ministry of Energy and Mines. Any act, transfer, termination or agreement related to these concessions must be registered with the Mining Rights Registry, which is part of the National Public Registry System, to be effective against the Peruvian government and third parties.

Holders of concessions or mining claims must comply with several obligations, including the payment of an annual concession fee ( derecho de vigencia ) of US$3.00 per applicable hectare. The annual concession fee is due and payable on or prior to June 30 of each year. Failure to pay the annual concession fee for two consecutive years will result in the termination of the mining concession.

Mining activities require holders to obtain title to the surface land from individual landowners, peasant communities or the Peruvian government.

 

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Mining concessions are granted for an unlimited period, subject to the achievement of minimum annual production levels. Two different regimes apply depending on the date the concession was granted:

For concessions granted before 2008 the following rules apply:

 

   

the minimum annual production is equivalent to US$100 per year per hectare, in the case of metallic concessions, and US$50 per year per hectare, in the case of non-metallic mining concessions;

 

   

the minimum production level is to be achieved no later than the end of the sixth year from the date of grant;

 

   

if the minimum production level is not achieved within that period, an annual penalty equivalent to US$6.00 per year per hectare must be paid starting with the first semester of the seventh year and until the minimum production level is achieved; and

 

   

if the minimum annual production has not been achieved by the twelfth year, then the annual penalty increases to US$20 per year per hectare.

However, under Supreme Decree No. 054-2008-EM, the rules above will apply only until 2019. As of 2019, if the annual minimum production has not been met, the annual penalty and the causes to terminate a mining concession will be determined by the General Mining Law for concessions granted in 2008 or thereafter, as described below.

For concessions granted in 2008 or thereafter, the following rules apply:

 

   

the minimum annual production target is equivalent to one tax unit (approximately US$1,354) per year per hectare, in case of metallic mining concessions, and 10% of one tax unit (approximately US$135) per year per hectare, in the case of non-metallic mining concessions;

 

   

the minimum production level is to be achieved no later than the end of the tenth year from the date of grant;

 

   

if the minimum production level is not achieved within that period, an annual penalty equivalent to 10% of the minimum annual production level is due until such level is achieved; and

 

   

if the minimum production level is not achieved by the end of the fifteenth year, the mining concession expires. Exceptionally, the concession can be extended for five additional years, provided that (i) the non-compliance of the minimum production level is caused by force majeure, or (ii) a minimum annual investment of 10 times the annual penalty is devoted to exploration and the annual penalty is paid. If the minimum annual production is not achieved by the end of this additional five-year term, the mining concession expires.

The penalty must be paid prior to June 30 of each year. Failure to pay the penalty for two consecutive years results in the termination of the mining concession.

 

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In addition to the payment of the annual concession fee and the penalty, holders of mining concessions must, pursuant to the Mining Royalty Law, pay a royalty for the exploitation of metallic and non-metallic resources. Prior to the amendment of the Mining Royalty Law described below, the amount of the royalty was determined on a monthly basis. For those minerals with an international market price (gold, silver, copper, zinc, lead and tin), the amounts were computed by applying the rates to the value of the concentrate or its equivalent, according to the applicable international market price. The historic rate scales were established in the Mining Royalty Law’s regulations as shown in the following table:

 

Annual sales

(in millions of US$)

   Rate  

Up to 60

     1

Between 60 and up to 120

     2

More than 120

     3

In case of minerals without an international reference market price (minerals other than gold, silver, copper, zinc, lead and tin), the mining royalty amounted to 1% of the value of the final product obtained from the mineral separation process, net of any costs incurred in the mineral separation process ( componente minero) .

However, the Mining Royalty Law was amended on September 29, 2011 to increase the tax payable on metallic and non-metallic mineral resources. Effective October 1, 2011, the royalty for the exploitation of metallic and non-metallic resources is payable on a quarterly basis in an amount equal to the greater of (i) an amount determined in accordance with the following statutory scale of tax rates based on a company’s operating profit margin and applied to the company’s operating profit, as adjusted by certain non-deductible expenses, and (ii) 1% of a company’s net sales, in each case during the applicable quarter. The royalty rate applied to the company’s operating profit is based on its operating profit margin according to the following statutory scale of rates:

 

Operating margin

 
     Applicable
rate
 

  0% - 10%

     1.00

10% - 15%

     1.75

15% - 20%

     2.50

20% - 25%

     3.25

25% - 30%

     4.00

30% - 35%

     4.75

35% - 40%

     5.50

40% - 45%

     6.25

45% - 50%

     7.00

50% - 55%

     7.75

55% - 60%

     8.50

60% - 65%

     9.25

65% - 70%

     10.00

70% - 75%

     10.75

75% - 80%

     11.50

More than 80%

     12.00

Mining royalty payments will be deductible for income tax purposes in the fiscal year in which such payments are made.

We believe that certain portions of the regulations of the Royalty Mining Law are unconstitutional, because they impose a mining royalty tax on non-mining activities. For instance, for cement companies, the amended Royalty Mining Law and its regulations establish that the mining royalty tax is calculated based on the total operating profit or net sales, as opposed to operating profit or net sales attributable exclusively to mining products, such as limestone, used to produce cement. Accordingly, in December 2011, we filed a claim to declare that the mining royalty tax applicable for the exploitation of non-metallic mining resources be calculated based on the value of the final product obtained from the mineral separation process, net of any costs incurred in the mineral separation process (“ componente minero ” ). However, we cannot assure you that our interpretation will prevail. See Item 5. Operating and Financial Review and Prospects—Factors Affecting our Results of Operations—New Mining Royalty Tax” for a description of the new mining royalty tax law.

Finally, holders of mining concessions are required at the beginning of their operations to submit a mining closure plan that must contain a description of the steps to restore the areas and facilities of each mining operation area to pre-mining condition. Holders of mining concessions are required to secure completion of the restorative measures by means of the following guarantees: (i) banking guarantee or credit insurance; (ii) cash guarantees; (iii) trusts; or (iv) those indicated in the Peruvian Civil Code.

 

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As of the date of this annual report, we primarily owned non-metallic mining concessions and limited metallic mining concessions with respect to zinc and iron. Substantially all of our concessions were granted prior to 2008. Our mining rights and concessions are in full force and effect under applicable Peruvian laws. We believe that we are in compliance in all material respects with the terms and requirements applicable to our mining rights and concessions.

Production Process

The cement production process along with other manufacturing activities are governed by General Industry Law ( Ley General de Industrias ), Law No. 23407, published in El Peruano on May 29, 1982, which establishes basic rules that promote and regulate activities in the manufacturing industry. The Ministry of Production is vested with authority to promote private investments in connection with industrial, processing and manufacturing activities, the surveillance of sustainable exploitation of natural resources (except for those extractive activities involving primary transformation of natural products), the protection of the environment, and the supervision of the quality of manufactured products. All industrial companies are subject to the General Industry Law and its regulations to the extent that the company’s gross income is primarily derived from industrial activities. Pursuant to Supreme Decree No. 009-2011-MINAM, the supervisory and monitoring functions of the Ministry of Production will be transferred to the Environmental Evaluation and Supervisory Agency ( Organismo de Evaluación y Fiscalización Ambiental —OEFA). According to OEFA Resolution No. 013-2012-OEFA-CD, such process commenced on January 2, 2013 and will finalize on May 31, 2013.

Environmental Regulations

Industrial companies and particularly cement companies are required to comply with several environmental regulations. Pursuant to Article 50 of Legislative Decree No. 757, the competent environmental authority is that corresponding to the activity of the company which generates the higher gross annual income. For that reason, the environmental authority that monitors our operations, considering that cement production represents the highest proportion of our gross profit, is the Ministry of Production.

The Environmental Regulations for Manufacturing Industries ( Reglamento de Protección Ambiental para el Desarrollo de Actividades de la Industria Manufacturera —Supreme Decree No. 019-97-ITINCI), or the “Environmental Regulations,” set forth different environmental obligations depending on the date of commencement of the subject company’s industrial activities. Thus, companies with industrial cement activities operational at the time these regulations entered into force (September 1997) were obliged to submit an Environmental Adaptation Management Plan ( Programa de Adecuación y Manejo Ambiental , or “PAMA”) to the Ministry of Production; while companies with industrial activities starting from that date onwards are obliged to submit either an environmental impact assessment or an environmental impact declaration depending on the level of risk and the impact of their activities on the environment. Furthermore, the Environmental Regulations establish that the Ministry of Production may require a mining closure plan (as an independent environmental assessment) with environmental measures that all companies must comply with before closing their operations to prevent any negative effects on the environment.

With regard to air emissions and wastewater discharges, the Ministry of Production has adopted legally binding environmental quality standards ( Limites Máximos Permisibles, or LMPs”) for cement industries (approved by Supreme Decree No. 003-2002-PRODUCE). These standards are legally enforceable and all cement industry operations are required to comply with them.

A violation of the Environmental Regulations is subject to different types of administrative sanctions, as determined in the Environmental Sanctions Regime of the Ministry of Production (Régimen de Sanciones e Incentivos del Reglamento de Protección Ambiental para el Desarrollo de Actividades de la Industria Manufacturera—Supreme Decree No. 025-2001-ITINCI), including warnings notice; fines of up to 600 UIT (US$858,823.53); restrictions, suspension or cancellation of the authorization or concession; and total or partial closing of the industrial facilities. The type of sanction imposed ultimately depends on the seriousness of the violation. Although the environmental competent authority for industrial activities is the Ministry of Production, other government agencies may impose fines in case of non-compliance with applicable permits.

 

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Prior Consultation with Local Indigenous Communities

On September 7, 2011, Peru enacted Law No. 29785, Prior Consultation Right of Local Indigenous Communities (Ley del Derecho a la Consulta Previa a los Pueblos Indígenas y Originarios, Reconocido en el Convenio 169 de la Organización Internacional del Trabajo). The law was enacted in order to implement Convention No. 169 of the International Labor Organization on Local Indigenous Communities in Independent Countries (Convenio OIT No. 169 Sobre Pueblos Indigenas y Tribales en Paises Independientes), previously ratified by Peru through Legislative Decree No. 26253. This law, which became effective on December 6, 2011, establishes a prior consultation procedure (procedimiento de consulta previa) to be undertaken by the Peruvian government in favor of local indigenous communities whose collective rights may be directly affected by new legislative or administrative measures, including the granting of new mining concessions. Regulation implementing this law was approved on April 3, 2012, by Supreme Decree No. 001-2012-MC, which defines the local indigenous communities that are entitled to the prior consultation rights and establishes the different stages that comprise the prior consultation procedure.

Consultation procedures for mining and processing concessions are carried out by the Ministry of Energy and Mines ( Ministerio de Energía y Minas ) prior to the granting of a new processing concession.

According to the recent practice of the Geologic Institute of Mining and Metallurgy ( Instituto Geológico Minero Metalúrgico ), the granting of mining concessions does not qualify as an “administrative measure” that potentially affects the rights of indigenous peoples because it does not grant per se a right to explore and exploit mineral deposits. Accordingly, the granting of mining concessions has not been included among measures that require consultation procedures with indigenous peoples. According to Ministerial Resolution No. 003-2013-MEM-DM, the Ministry of Energy and Mines has established that consultation procedures are applicable prior to the commencement of: (i) exploration activities ( Autorización de inicio de actividades de exploración ) ; (ii) exploitation activities ( Autorización de inicio o reinicio de las actividades de desarrollo, preparación y explotación—incluye plan de minado y botaderos ); and (iii) processing concessions ( otorgamiento de concesión de beneficio ) .

Local indigenous communities do not have a veto right; upon completion of this prior consultation procedure, the Peruvian government can discretionarily approve or reject the applicable legislative or administrative measure.

In addition, any sale, lease or other act of disposal of surface land owned by local indigenous communities is subject to the approval of an assembly composed of the members of such communities according to the following rules:

 

   

for local indigenous communities located on the coast, approval of not less than 50% of members attending the assembly is required; and

 

   

for local indigenous communities located in the highlands and the Amazon region, approval of at least 2/3 of all members attending the assembly is required.

Permits and Licenses

Mining Concessions

According to the General Mining Law, a mining concession is required in order to extract mineral resources needed to produce cement. The mining concession grants the right to explore and exploit the mineral resources located in a solid of indefinite depth, limited by the vertical plane corresponding to the sides of square, rectangle or polygon referred to by the Universal Transversal Mercator coordinates. The Geological Mining and Metallurgical Institute (Instituto Geológico Minero y Metalúrgico) is in charge of managing the procedure of granting mining concessions, which includes the receipt of the request, the granting and the termination of mining concessions.

 

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Explosives. Mining concessionaires are required to obtain the following permits to operate and store explosives:

 

   

Certificate of Mining Operation (Certificado de Operación Minera), to be granted by the Ministry of Energy and Mines;

 

   

Semiannual Authorization for Use of Explosives, to be granted by the General Bureau of Explosives of the Ministry of Interior (Dirección General de Control de Servicios de Seguridad, Control de Armas, Munición y Explosivos de Uso Civil or “DICSCAMEC”);

 

   

Manipulation of Explosives License for each individual that intends to handle explosives, to be granted by the DICSCAMEC; and

 

   

Explosive’s Warehouse Operation License, to be granted by DICSCAMEC.

Water and Wastewaters

To use water resources in cement industry activities, it is necessary to obtain a water right granted by the Water Management Authority ( Autoridad Nacional del Agua, or “ ANA” ) prior to the use of underground or fresh water sources. If the proposed activities will generate domestic or industrial wastewaters, which will be discharged into natural water sources or soil, authorization from ANA is required, with a favorable opinion of the General Bureau of Environmental Health ( Dirección General de Salud Ambiental, or “DIGESA”).

Hazardous Waste

Hazardous waste generated as a consequence of cement production activities must be disposed of in specialized landfills. The transportation of solid waste outside the limits of the industrial complex must be conducted exclusively through specialized companies registered with DIGESA. Industries are free to contract with an EPS-RS (a company that provides solid waste services such as transportation, treatment or disposal) or with an EC-RS (a company that carries out commercialization activities aiming at the reuse of solid waste). Yet in order to limit their liability in case of environmental harm, industries must make sure the EPS-RS and EC-RS they retain count with all necessary permits to collect, transport and dispose hazardous wastes.

Chemical Feedstock

The commercialization, transportation and use of controlled chemical feedstock ( Insumos Químicos y Productos Fiscalizados, or “IQPF”) is restricted, because of their potential use in the production of illegal drugs or controlled substances. Companies that require an IQPF must obtain an IQPF User Certificate ( Certificado de Usuario de IQPF ) from the General Bureau of Chemical Feedstock of the Ministry of Interior ( Unidad Antidrogas de la Policía Nacional del Perú, or “DIRANDRO”). Companies such as ours are also required to register with the Ministry of Production any IQPF activities they plan to carry out ( Registro Único para el Control de IQPF ).

Fuel Storage

Any company that purchases fuels for its own activities and has facilities to receive and store fuel with a minimum capacity of one meter cubed (264,170 gallons) is required to (i) receive from the Mining and Energy Investment Supervision Body ( Organismo Supervisor de la Inversión en Energía y Minería, or “OSINERGMIN”) prior permission to build and operate said installations, and (ii) be registered with the Registry of Direct Fuel Consumers, in order to obtain the SCOP Code ( Código del Sistema de Control de Órdenes de Pedido ) necessary to purchase fuel.

 

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Cultural Heritage Protection

If the design and development of cement industry activities involves the removal of topsoil, a Certificate of Non-Existence of Archaeological Ruins ( Certificado de Inexistencia de Restos Arqueológicos, or “ CIRA”) from the Ministry of Culture with respect to the area under construction must be obtained. The CIRA will either certify that on the surface of the evaluated area no archaeological sites or features were discovered, or will identify their exact location and extent in order to implement precautionary measures to protect the archaeological artifact. The CIRA is valid for an unlimited period, but will become void should any archaeological artifacts be accidentally discovered during the construction works or due to any natural cause. In such an instance, the company must stop the construction work immediately and notify the Ministry of Culture. Failure to stop the construction work may generate civil and criminal liabilities. Under certain exceptional circumstances, Peruvian legislation allows the removal of archeological artifacts when the area is required for development of projects that are of national interest.

Labor Regulations

Peruvian legislation allows hiring employees through: (i) a fixed-term contract, (ii) a contract for an indefinite duration; or (iii) a contract for part-time employment.

The minimum wage established in Peru is S/.750.00 per month. Peruvian labor legislation establishes a maximum 8-hour work day or 48 hours per week for employees older than 18 years. For overtime, employers must pay at least an additional 25% and an additional 35% over the regular hourly wage for the first two hours and for any additional hours, respectively. Employees are entitled to a minimum rest of 24 consecutive hours per week.

Regardless of the type of employment contract, pursuant to Peruvian law full-time employees are entitled to receive: (i) an additional 10% of the minimum wage, provided that they are responsible for (a) one or more children under the age of 18, or (b) persons who are up to 24 years of age if they are pursuing higher education, (ii) two additional monthly salaries per year, one in July and one in December (pursuant to Law No. 29351, until December 31, 2014, said payments are not subject to any social contribution, except for Income Tax. Therefore, until December 2014, employers shall pay directly to their employees as an Extraordinary Bonus, the amount of the contribution to the Social Health Insurance (ESSALUD) for such payments, equivalent to 9%),, (iii) thirty calendar days of annual paid vacation per year, (iv) life insurance, provided they have been employed for at least four years, (v) a compensation for time of services (CTS) that amounts to 1.16% of a monthly salary and is deposited each year in May and November, provided they work an average of at least four hours per day for the same employer, (vi) benefits from the Peruvian Social Health Insurance (ESSALUD) to which employers must contribute a rate equivalent to 9% of their employees’ income, and (vi) a percentage of the company’s annual income net of taxes (10% in the case of income derived from cement operations, and 8% in the case of income derived from our mining activities), provided the company has twenty or more employees.

Free and Fair Competition Protection

In Peru, businesses are generally not required to receive the prior authorization of the antitrust authority, which in Peru is INDECOPI.

However, in order to promote economic efficiency and protect consumers, anti-competitive behavior is sanctioned by law. Behavior that is prohibited according to national law includes: (i) the abuse of a dominant market position, (ii) concerted horizontal practices and (iii) concerted vertical practices. Moreover, under the Unfair Competition Law it is illegal to act in a way that may hinder the competitive process. An unfair behavior is one that is objectively contrary to the entrepreneurial good faith, ethical behavior and efficiency in a market economy.

 

C. Organizational Structure

All of our operating subsidiaries are incorporated in Peru. The following chart sets forth our corporate structure, operating subsidiaries only, as of the date of this annual report.

 

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(1) Quimpac owns the remaining 25.1%.
(2) An affiliate of Mitsubishi owns the remaining 30.0%.

The following is a brief description of the principal activities of our consolidated subsidiaries:

 

   

Cementos Selva S.A. is engaged in the production and marketing of cement, quicklime and other cement-related materials in the northern region of Peru, near the Peruvian jungle. It holds all of the outstanding shares of Dinoselva Iquitos S.A.C., our cement and construction materials distributor for products processed in our Rioja facility.

 

   

Distribuidora Norte Pacasmayo S.R.L. is primarily engaged in selling and distributing cement products produced at our Pacasmayo facility. It produces and sells cement-related materials, such as concrete blocks and ready mix concrete, and sells other construction materials manufactured by large manufacturers.

 

   

Fosfatos del Pacífico S.A. was formed with the objective of exploring phosphate deposits that were discovered in our diatomite fields in our Bayóvar concession in the northwest of Peru. Our phosphate project is currently in pre-feasibility stages. In December 2011, we sold a minority equity interest in Fosfatos to an affiliate of Mitsubishi to develop our phosphate deposits in the Bayóvar fields, in the northwest of Peru.

 

   

Salmueras Sudamericanas S.A. was created in 2011 with Quimpac as a minority equity holder, in order to develop our combined brine fields in the coastal region of Piura in the north of Peru. We own a 74.9% equity interest in Salmueras and Quimpac owns the remaining 25.1%.

 

   

Empresa de Transmisión Guadalupe S.A.C.’s sole operation is to provide electricity transmission services to the Pacasmayo facility.

 

D. Property, Plant and Equipment

Properties

We own our office at our headquarters in Lima, Peru, at Calle La Colonia 150, Urbanización El Vivero, Surco. We also own our plants, warehouses, transportation facilities and the office space at our production facilities, including our workers’ facilities occupying approximately 50,000 square meters at our Pacasmayo facility and a warehouse occupying approximately 25,000 square meters at the Salaverry port facility.

 

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Area of Operation

We own and operate our flagship cement and quicklime production facility, located in the city of Pacasmayo, department of La Libertad, approximately 667 kilometers north of Lima. From our Pacasmayo facility, we supply cement principally to the coastal and central regions of northern Peru, including the cities of Piura, Chiclayo, Cajamarca, Trujillo and Chimbote.

In addition to our Pacasmayo facility, we also own and operate a smaller cement facility, located in the city of Rioja, department of San Martín, approximately 468 kilometers east of the Panamericana Norte highway. From our Rioja facility, we supply cement to the northeastern region of Peru, including the cities of Moyobamba and Tarapoto, among others.

The following map shows the geographical location of our production facilities, as well as the location of our main commercial offices as of December 31, 2012:

 

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Pacasmayo Facility

As of December 31, 2012, our Pacasmayo facility had ten kilns, which produce clinker (one of which is also equipped to produce quicklime), and an additional Waelz rotary kiln that produces quicklime. Additionally, our facility has a primary and secondary cone crusher located near our Acumulación Tembladera limestone quarry. The main crusher has installed crushing capacity of 800 metric tons per hour and the secondary crusher has installed crushing capacity of 170 metric tons per hour. Our Pacasmayo facility operates with three horizontal rotary kilns with total installed annual clinker production capacity of 1,034,880 metric tons and six vertical shaft kilns with total installed annual clinker production capacity of 465,120 metric tons. The total installed annual clinker production capacity at our Pacasmayo facility is 1.5 million tons. Our Pacasmayo facility also features three cement finishing mills with installed annual cement production capacity of 2.9 million metric. Our Pacasmayo facility is also equipped with silos containing storage capacity for 25,000 metric tons of cement.

 

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As of December 31, 2012, our Pacasmayo facility had installed production capacity of approximately 240,000 metric tons of quicklime per year, including the annual installed capacity of one of our clinker kilns and our Waelz rotary kiln, which are equipped to also produce quicklime.

Rioja Facility

Our Rioja facility operates with a small cone crusher and three vertical shaft kilns with total annual installed clinker production capacity of 200,000 metric tons and two cement finishing mills with total annual installed production capacity of 200,000 metric tons. Our Rioja facility is also equipped with a silo with storage capacity of 1,750 metric tons of cement.

Our Rioja facility currently operates at near full capacity. We have increased our annual clinker production capacity at this facility by 80,000 metric tons and our installed annual cement production capacity by 240,000 metric tons, bringing the total annual installed production capacity of our Rioja facility to 440,000 metric tons of cement and 280,000 of clinker. This expansion is currently in the commissioning stage.

Ready-Mix Concrete Facilities

We also have fifteen fixed and mobile ready-mix concrete facilities located in the northern cities of Chimbote, Trujillo, Chiclayo, Piura and Cajamarca, among others. These facilities allow us to supply ready-mix concrete to large construction projects throughout the entire northern region of Peru. As of December 31, 2012, our ready-mix operations had 91 mixer trucks and 18 concrete pumps available to deliver ready-mix concrete.

Capacity and volumes

The table below sets forth our clinker, cement and quicklime production capacity and volumes in our Pacasmayo and Rioja facilities for the periods indicated.

 

(in thousands of metric tons,

except percentages)

   As of and for the year ended December 31,  
   2010     2011     2012  
   Capacity      Production      Utilization
rate(1)
    Capacity      Production      Utilization
rate(1)
    Capacity      Production      Utilization
rate(1)
 

Cement:

                        

Pacasmayo facility

     2,900         1,615         55.7     2,900         1,751         60.4     2900         2,053         70.8

Roja facility

     200         196         98.2     200         195         97.5     200         200         100.0
  

 

 

    

 

 

      

 

 

    

 

 

      

 

 

    

 

 

    

Total

     3,100         1,811         58.4     3,100         1,946         62.8     3100         2,253         72.7

Clinker:

                        

Pacasmayo facility

     1,300         1,118         86.0     1,300         1,160         89.2     1500         1,209         80.6

Roja facility

     200         160         79.9     200         155         77.5     200         159         79.5
  

 

 

    

 

 

      

 

 

    

 

 

      

 

 

    

 

 

    

Total

     1,500         1,278         85.2     1,500         1,315         87.7     1700         1,368         80.5

Quicklime(2)

                        

Pacasmayo facility

     240         127         53.0     240         90         37.5     240         101         42.1

 

(1) Utilization rate is calculated by dividing production for the specified period by installed capacity.
(2) Our Rioja facility does not produce quicklime. In addition, one of our clinker kilns and our Waelz rotary kiln are equipped to produce quicklime.

Phosphate Project

Overview

In 2007, we acquired a diatomite concession (Bayóvar No. 9) located in Bayóvar in the northwest of Peru. Diatomite is a raw material that we use in our cement production. In performing drill tests to extract diatomite at the Bayóvar field, our team of geologists discovered phosphate rock deposits, a chemical component used primarily as a fertilizer in the agricultural industry.

 

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We are currently in the stage of basic engineering studies, which are being conducted by Golder Associates on the mine, a consortium of FL Smidth Minerals—Jacobs—Golder Associates on the plant, Berenguer Ingenieros on the port; and Pepsa Tecsult and Aecom on the electrical transmission and the water.

In 2011 we sold a 30.0% equity interest in our subsidiary Fosfatos del Pacifico S.A., which focuses on our phosphate operations, to an affiliate of Mitsubishi, a global integrated business enterprise listed on the Tokyo Stock Exchange that develops and operates businesses across multiple industries, for an aggregate purchase price of approximately US$46.1 million. Mitsubishi is a world leading marketer of phosphate-derived products. In connection with the sale, Mitsubishi entered into an off-take agreement to purchase Fosfatos’ production of phosphate ore. Under the off-take agreement, Mitsubishi agreed to purchase, once we begin production, 2.0 million metric tons of phosphate ore annually, and has the option to purchase an additional 0.5 million metric tons annually, to the extent we choose not to sell it to the Peruvian market, at a price to be determined pursuant to an agreed upon formula based on prevailing market prices. The off-take agreement has a term of 20 years, with an option for Mitsubishi to extend the term for an additional 5 years upon expiration. In connection with the investment, we agreed to provide the Mitsubishi affiliate with certain minority protection rights. We and the Mitsubishi affiliate have also agreed to finance the construction of the first phosphate mine by obtaining third party project financing to the extent possible. In addition, Fosfatos has established a dividend policy to pay dividends annually in an amount not less than 75% of its net profits subject to availability of cash reserves, unless agreed otherwise by the shareholders.

Property Location, Access, Topography and Climate

Our Bayóvar No. 9 concession is located in the Piura province, approximately 950 kilometers north of Lima. The site can be accessed from Piura by vehicle mainly through paved roads. The Bayóvar region is a part of the Peruvian coast in the desert of Sechura. The climate is hot and dry, with temperatures ranging between 22°C and 28°C and average moisture of 78%. The region experiences a cold season between June and September and a warm/rainy season between January and April. Annual rainfall in the region is approximately 100 millimeters. The map below illustrates the location of our Bayóvar concession.

 

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History

The Bayóvar No. 9 concession was originally granted in 1969 by a government decree to Minero Perú S.A. (“Minero Perú”), which was a government-owned corporation created to develop mining activities and related industrial activities. In 1992, Activos Mineros S.A.C., another government-owned corporation (“Activos Mineros”) (formerly Empresa Regional Minera Grau Bayóvar S.A.) acquired the concession from Minero Perú.

Mining Concession

In August 2007, we entered into a purchase agreement with Activos Mineros to acquire the right to develop the Bayóvar N°9 concession, which we obtained in a public auction for US$110,000, plus US$1.50 per metric ton of extracted diatomite from the Bayóvar field.

The term of the concession is indefinite, provided we pay an annual concession fee and meet minimum annual production requirements. Failure to pay such fees in a timely manner for two consecutive years will cause us to forfeit our concession rights. Under the purchase agreement, we were required to meet a minimum production of 40,000 metric tons of diatomite in 2010, which we satisfied. On the third anniversary of the purchase agreement and thereafter, we are required to produce a minimum of 80,000 metric tons of diatomite per year. The concession also gives us the right to exploit other metallic and non-metallic ores, such as phosphate rock.

Under Peruvian law, a mining concession does not grant us the right to use the surface land, as it belongs to the local community. We have entered into a 30-year term agreement with the community of San Martín de Sechura, under which we agreed to make a one-time payment of US$110,000 in consideration for the right to use the surface land (including the right to obtain minerals from the land) and a related easement to access required areas for development. In addition, we have agreed to pay US$1.50 per metric ton of extracted diatomite to the community of San Martín in connection with the concession. If we extract phosphate deposits in the future, we are also required to pay Activos Mineros and the San Martin local community corresponding payments with respect to phosphate sales based on a pre-determined formula.

Royalties

Under the new Peruvian Royalty Mining Law, once we begin exploiting these mineral resources, we will be required to pay mining royalty taxes to the Peruvian government on a quarterly basis in an amount equal to the greater of (i) an amount determined in accordance with a statutory scale of tax rates based on our operating profit margin that is applied to our operating profit, as adjusted by certain non-deductible expenses, and (ii) 1% of our net sales, in each case during the applicable quarter. See “Item 4. Information on the Company—B. Business Overview—Regulatory Matters—Mining Regulations.”

Description of Rock Formation

The Sechura desert located in the north of Peru is substantially covered with the Zapallal marine formation from the Tertiary period, and with a relatively thin sand overburden. The western Sechura desert is underlain by a thick series of marine sediments that range in age from Miocene to Pliocene and are deposited in a shallow north-trending basin between the Andes and Illescas Mountains. They are overlain by alluvium and windblown sand of recent age interrupted by Pliocene strata and underlain by older Miocene strata.

The oldest units in the stratigraphic column are rocks dating back to the Pre-Cambrian and Paleozoic periods. The Cenozoic units are composed by carbonatic sandstones, lutites and mudstones, bituminous lutites, conglomeratic sandstones interbedded with impure limestones and phosphate sediments. Coquine and Aeolian deposits remain in the upper portion of the stratigraphic column.

Exploration Activities

From 2008 to 2010, we commissioned an external consultant to conduct diamond drill campaigns. A total of 185 holes ranging in depth from approximately 80 to 90 meters were completed. The first campaign covered an area with a regular grid of approximately 800 × 800 meters and infill drilling of approximately 550 × 550 meters. The second campaign, based on the results of previous drilling samples and analysis, included 29 holes in a grid of

 

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350 × 350 meters with 2,327 meters drilled inside the envelope. Based on drilling samples and analysis obtained from the previous drilling campaign, the second campaign covered the areas where the data suggested had the highest potential value to justify developing a mine. As of December 31, 2012, we had drilled a total of 5,200 hectares with approximately 550 meters between holes.

Sample analysis and assays based on drilling were conducted by a chemical company based on accepted international industry standards. In addition, we commissioned Golder Associates Peru S.A. to carry out and develop a geological survey and model. To undertake the survey, 13 points of geodesic GPS control were located in the field, spaced in the area according to requirements. Statistical analysis was carried out to compare the correlation between the original data (drill hole logs) and the interpreted data (block model/geological model).

Mineralized Material Estimates

Based on an independent report, dated August 2011, prepared by Golder Associates Peru S.A., the following table summarizes the estimated mineralized material at our Bayóvar concession:

 

     Million metric tons      P2O5 Average grade  

Wet density

     541.4         18.5

Dry density

     408.2         18.7

Brine Project

Overview

We are planning on developing our brine concessions located in the coastal region in the north of Peru, consisting of approximately 136,245 hectares of land. Brine is a highly concentrated water solution of common salt, which can be processed to obtain chemical components. In July 2011, we created Salmueras with our minority partner Quimpac to develop our combined brine concessions consisting of Ñamuc, Cañacmac and El Tablazo. We hold a 74.9% equity ownership interest in Salmueras and Quimpac owns the remaining 25.1%. We have committed total capital investments of US$100 million during the course of the project. The basic engineering study is being conducted by the German company, K-Utec AG Salt Technologies. Due to the complexity of our Brine project and in accordance with our strategy of disciplined capital expenditures, in order to develop this project we must first obtain the results of the basic engineering study and the local communities agreements for the exploitation of the mineral resources.

Mining Concessions

Brine concessions held by Salmueras Sudamericanas S.A. may be divided in the following three areas:

El Tablazo. El Tablazo comprises an aggregate of 70 concessions with a total area of 64,712 hectares, located in the district of Morrope, in the department of Lambayeque.

Ñamuc. Ñamuc comprises a group of 62 concessions with a total area of 50,074 hectares located in the district of Sechura, department of Piura.

Cañacmac. Cañacmac comprises an aggregate of eight concessions with a total area of 21,459 hectares, located between the departments of Piura and Lambayeque.

Each of these concessions gives us the right to explore and exploit minerals for an indefinite term, provided we pay the annual concession fee and meet minimum annual production requirements. Mining concession titles do not give us the right to use the surface land where the concessions are located, which belongs to the local communities. We have obtained permission to explore the fields from the respective local communities and will negotiate surface land rights with the local communities in due course.

 

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Glossary of Technical Terms

You may find the following definitions helpful in your reading of this annual report.

grade ” is the amount of minerals in each ton of ore.

hectare ” is a metric unit of area equal to 10,000 square meters (2.47 acres).

mineralized material ” means a mineralized ore that has been delineated by appropriately spaced drilling or underground sampling to support a sufficient tonnage and average grade of minerals. Such a deposit does not qualify as containing reserves, until a comprehensive evaluation based on unit cost, grade, recoveries, and other material factors establishes legal and economic feasibility.

probable reserves ” are reserves for which quantity and grade and/or quality are computed from information similar to that used for proven reserves, but the sites for inspection, sampling and measurement are farther apart or are otherwise less adequately spaced. The degree of assurance, although lower than that of proven reserves, is high enough to assume continuity between points of observation.

proven reserves ” are reserves for which (a) quantity is computed from dimensions revealed in outcrops, trenches, workings on drill holes, grade and/or quality are computed from the results of detailed sampling and (b) the sites for inspection, sampling and measurement are spaced so closely and the geologic character is so well defined that size, shape, depth and mineral content of reserves are well-established.

reserve ” is that part of a mineral deposit which could be economically and legally extracted or produced at the time of the reserve determination.

Insurance

We maintain a comprehensive insurance program that protects us from certain types of property and casualty losses. Our plants and equipment are insured against losses. Additionally, our insurance policy provides coverage for business interruption in our cement manufacturing facilities. We also purchase commercial insurance to cover risks associated with workers’ compensation and other general liabilities. We believe our insurance programs and policy limits and deductibles are appropriate for the risks associated with our business and are in line with the insurance policies of similar cement manufactures that operate in Peru.

Environmental Compliance and Social Responsibility Projects

We are in accordance with substantially all applicable environmental laws and regulations and have all the required environmental permits and licenses to conduct our business. We have Environmental, Health and Safety management systems in place to address the environmental, health and safety risks we face.

We are committed to the development and quality of life of communities that surround the area where we operate. We have developed a good relationship with the local communities surrounding our plant facilities since we started operations in Pacasmayo. We have a number of social responsibility programs aimed at improving health and education in the area. Below is a brief description of a few of our social initiatives.

Tecsup. Tecsup is a leading not-for-profit institute in Peru that provides technical education to high-school students. It was founded by the family of our controlling shareholder, and we support it by providing financial aid and scholarships to promising high school students living near our plants to study at the Trujillo campus of Tecsup. Through its three campuses in Peru, Tecsup has graduated over 7,000 students in various technical fields, some of whom now work for us and our affiliated companies.

Center for Technological Training. We have a training center at our facility where we teach students and adults business and technical skills. Our center is staffed with instructors from Tecsup. The goal of the center is to help develop the professional skills of the local population, especially of students and teachers at the educational institutions in the town of Tembladera. In 2012, this program benefited a total of 935 students and teachers.

 

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Abilities Strengthening. This program seeks to provide training to local stakeholders such as grassroots organizations, local entrepreneurs, teachers, journalists, among others. The objective of the program is to strengthen their skills and knowledge by providing courses and seminars especially designed for that purpose. The program is funded by us, in coordination with local governments and social institutions, and in 2012 benefited 530 stakeholders.

ITEM 4A. UNRESOLVED STAFF COMMENTS

Not applicable.

ITEM 5. OPERATING AND FINANCIAL REVIEW AND PROSPECTS

 

A. Operating and Financial Review and Prospects

Overview

We are a leading Peruvian cement company, and the only cement manufacturer in the northern region of Peru. With more than 55 years of operating history, we produce, distribute and sell cement and cement-related materials, such as concrete blocks and ready-mix concrete. Our products are primarily used in construction, which has been one of the fastest growing segments of the Peruvian economy in recent years. We also produce and sell quicklime for use in mining operations.

In 2012, we sold approximately 2.2 million metric tons of cement, representing an estimated 21.7 % share of Peru’s total domestic cement shipments, and substantially all the cement consumed in the northern region. That same year, we also sold approximately 0.1 million metric tons of quicklime.

We own two cement production facilities, our flagship Pacasmayo facility located in the northwest of Peru and our Rioja facility located in the northeast. Our facilities have total installed annual cement production capacity of approximately 3.1 million metric tons. We also have installed production capacity to produce 240,000 metric tons of quicklime. We own concession rights to several quarries with reserves of limestone and other raw materials located near our facilities. We estimate that our existing quarries have sufficient reserves to supply us with limestone for approximately 68 years, based on our 2012 limestone consumption levels.

We are in the basic engineering stage of our new cement plant in Piura, the third largest city in northern Peru. This plant is expected to have an annual production capacity of 1.6 million metric tons of cement. For this project, we have entered into a supply agreement with ThyessenKrupp Polysius and Loesche for the provision of key equipment.

Our new Piura plant will allow us to meet projected increases in the regional demand for cement in the coming years.

In addition, we are undertaking two non-metallic mining projects, which we believe present significant opportunities for our company. We own concessions where we have discovered deposits of phosphate rock, a principal component for agricultural fertilizers, and brine deposits that have a variety of uses in the agricultural fertilizer, animal feed and construction industries, among others. We are developing the basic engineering studies to determine if development of these mineralized materials would be economically feasible.

Factors Affecting our Results of Operations

Revenue Drivers

In 2012, approximately 92% of our total cement sales were in the form of bagged cement, substantially all of which was sold through retailers both within and outside of our distribution network. The remaining 8% of our cement was sold in bulk or in shipments of concrete blocks or ready-mix concrete directly to large construction

 

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companies. Our retail sales are directed to both the auto-construcción segment ( i.e. , households that buy cement to gradually build or improve their own homes) and construction companies that buy cement for a variety of small construction works, including minor residential, commercial and infrastructure projects. Cement destined for large private and public projects, such as housing complexes, highways, irrigation channels, hospitals, schools and mining and industrial facilities, is typically sold in bulk or in shipments of concrete blocks or ready-mix concrete.

According to our estimates, sales to the auto-construcción segment accounted for approximately 59% of our total cement sales in 2010, 56% in 2011 and 57% in 2012; private construction projects, both large and small, accounted for approximately 25% of our total cement sales in 2010, 28% in 2011 and 27% in 2012; and public construction projects accounted for the remaining 16% of our total cement sales in 2010, 16% in 2011 and 17% in 2012. Each of these segments has grown significantly during these periods as a result of improving economic conditions in the northern region of Peru. While auto-construcción continues to represent the majority of our sales, private construction projects have become increasingly more important to our business as our market is transitioning to more formal construction.

Our cement sales are largely driven by residential construction (both auto-construcción and small and large housing projects undertaken by construction companies), which are generally affected by economic conditions in the northern region of Peru. Auto-construcción is particularly affected by disposable household income levels, as low-income families tend to invest most of their savings in developing their homes. Larger residential construction can be more influenced by economic outlook, the availability of financing and prevailing investment levels in the region. GDP in the northern region of Peru is estimated to have grown 6.1% in 2010, 5.3% in 2011 and 5.0% in 2012. Our cement sales, which represented substantially all cement sales in the northern region of Peru, grew by 16.3% in 2010, 7.3% in 2011, and 16.6% in 2012 in terms of cements dispatches measured by metric tons.

Our cement sales are also driven, to a lesser extent, by commercial developments and infrastructure projects. Commercial and other private construction projects are also affected by investment levels in the region, while public infrastructure projects depend on the priorities and financial resources of the national, regional and local governments.

Cost Drivers

Coal is the principal source of energy used in our production process, in particular to fuel our kilns. We purchase anthracite coal from nearby coal mines and import bituminous coal primarily from Colombia. We do not have long-term coal supply agreements, and we do not engage in hedging transactions in connection with the price of coal. In the past, the price of bituminous coal has been related to the international price of oil, as it is used as a substitute for oil. Coal accounted for an estimated 20.0% of our costs of production in 2010, 17.5% in 2011 and 21.6% in 2012. The increase in the proportion of coal as a percentage of our costs in 2012 is largely a result of: (i) an increase in the price of coal in 2012 compared to 2011, (ii) an increase in the use of fuel due to the unscheduled corrective maintenance of our main kilns. In 2011 we exercised certain of our options to purchase coal mining concessions, which we intend to use to continue to reduce our use of bituminous coal.

Electricity is used in our facilities mainly to power our cement mills. We power our Pacasmayo facility with electricity purchased from Electroperú, with which we have a long-term supply agreement expiring in 2020. With the expiration of our supply agreement with Kallpa, we migrated all of our electricity consumption at our Pacasmayo facility under the Electroperú agreement. Our Rioja facility is powered primarily with electricity from ELOR, with which we have a long-term supply agreement expiring in 2016. Under these agreements, the price of electricity is based on a formula that takes into consideration our consumption of electricity and certain market variables, including the international price of oil. Electricity accounted for approximately 16.5% of our cost of production in 2010, 13.2% in 2011 and 11.9% in 2012. Electricity costs tend to be lower during the rainy season, from January to March of each year, as our region is served primarily by hydro-electric power plants.

In 2012, due to the stronger demand for cement and the corrective maintenance of our principal kiln, which reduced our ability to produce our own clinker, we started to import part of the clinker that we use. As a result, we had an increase in our operating costs in 2012, as the cost per metric ton of imported clinker is higher than clinker we produce. We used approximately 208,708 metric tons of imported clinker, which represented approximately 11.3% of our cement production cost for 2012. This resulted in higher operating costs for 2012 compared to 2011.

 

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The over use of the kilns, due to the increasingly strong demand for cement, produced an unexpected downtime of such equipment and entailed the need for a short period of corrective maintenance. We expect to continue to import a portion of the clinker that we use in the near term.

In addition, we purchase from third parties admixtures and certain raw materials that we use in our production process, including gypsum, burn furnace slag, iron and other materials. Admixtures and raw materials used in our cement production process do not include construction supplies that we acquire from third-parties for resale through our distribution network along with our cement products. The cost of admixtures and raw materials purchased from third parties accounted for approximately 6.3% of our cost of production in 2010, 16.5% in 2011 and 15.7% in 2012.

Our labor costs have remained stable during the past three years. Personnel expenses represented 20.9% of our total costs and expenses in 2010, 20.0% in 2011 and 18.3% for 2012.

Third-Party Construction Supplies

In addition to selling our own products, we also sell and distribute construction supplies manufactured by third parties, such as steel rebars, wires and pipes, that are typically used in construction along with our cement. Our profit margins from the sale of third party construction supplies are significantly lower than the margins on our cement products and they are affected by fluctuations in product prices and the exchange rate between the nuevo sol and the U.S. dollar between the time we purchase these products and the time we resell them. We sell these products primarily as a service to retailers in our distribution network in an effort to support the sale of our cement products.

Sale of Raul Copper Mine Concessions

Our results in 2010 were affected by our sale in March 2010 of our Raul copper mine concessions in central Peru that we previously leased to the buyer. Prior to the sale, we recognized rental income from related lease payments under Other income (expenses), net. Proceeds from the sale, which were approximately S/.75.9 million, were recorded as an operating gain under IFRS. Our Raul copper mine concessions were classified as held for sale as of December 31, 2009. The comparison of our results of operations is affected by this gain in 2010 and by the loss of the related rental income following the sale of the concessions.

Suspension of Zinc Calcine Operations

In 2008, we suspended our zinc mining activities due to adverse market conditions. In 2009 and 2010, however, we continued to produce and sell zinc calcine in diminishing quantities, as we used our remaining inventory of zinc oxide ore. In 2011, we did not produce zinc calcine and used our Waelz rotary kiln to produce quicklime instead. We sold small quantities of zinc calcine in 2011 from our remaining inventory of zinc calcine. As a result, our net sales and cost of sales derived from zinc calcine, which is recorded under the caption “Other” declined. The lower production levels during those periods were not sufficient to fully absorb our fixed production costs and, consequently, our gross profit for “Other” was negative in 2009 and 2010, despite increasing zinc prices during those years.

Due to a sudden and sharp drop in the international price of zinc in 2011 and based on our future expectation of zinc prices, we recorded an impairment of approximately S/.96.0 million during 2011 related to our zinc mining assets, of which S/.75.4 million correspond to our zinc mine and S/.20.6 million to the portion of the plant used for zinc calcine production.

New Mining Royalty Tax

On September 29, 2011, the Peruvian government amended the Royalty Mining Law to increase taxation on metallic and non-metallic mining activities. For a description of the new tax, see “Item 4. Information on the Company—B. Business Overview—Regulatory Matters—Mining Regulations.” The mining royalty tax for the exploitation of metallic and non-metallic minerals is payable on a quarterly basis in an amount equal to the greater of (i) an amount determined in accordance with a statutory scale of tax rates based on a company’s operating profit margin that is applied to its operating profit, as adjusted by certain non-deductible expenses and (ii) 1% of a company’s net sales,

 

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in each case during the applicable quarter. These amounts are determined based on our unconsolidated financial statements and those of our subsidiaries with operations that are under the scope of the Royalty Mining Law. Mining royalty payments are deductible for income tax purposes in the fiscal year in which such payments are made. Future mining royalty tax payments will depend on our operating profit, operating profit margin and net sales. If this amendment had been in effect during the whole year (based on our results of operations for 2012), we estimate that our incremental mining royalty taxes, net of the applicable income tax effect, would have been approximately S/.7.2 million (US$ 2.8 million) in 2012.

We believe that certain provisions of the Royalty Mining Law are unconstitutional, because they impose a mining royalty tax on non-mining activities. For instance, for cement companies, the amended Royalty Mining Law and its regulations establish that the mining royalty tax is calculated based on the total operating profit or net sales, as opposed to operating profit or net sales attributable exclusively to mining products, such as limestone, used to produce cement. Accordingly, in December 2011, we, along with others cement and non-metallic minerals companies, filed a constitutional claim to have the mining royalty tax applicable for the exploitation of non-metallic mining resources calculated based on the value of the final product obtained from the mineral separation process, net of any costs incurred in the mineral separation process (“ componente minero ”). For additional information, see note 27 to our annual audited consolidated financial statements included in this annual report. Recently the Peruvian tax authority issued a tax assessment against us applying the new criteria established in the amended Royalty Mining Law, which includes in the calculation the profit obtained in the industrial activity, to the years before the amendment was adopted. In September 2012, we and other cement and non-metallic minerals companies filed another constitutional claim to an injunction to prevent the tax authority from applying the legal criteria defined in the amended royalty mining law retroactively, for the periods before such amendment was enacted, and to declare that the mining royalty tax applicable to the exploitation of non-metallic mining resources be calculated based solely on the value of the final product obtained from the mineral separation process, net of any costs incurred in that process (“ componente minero ”), excluding any profit obtained from the industrial activity. We cannot estimate a timeline for the resolution of these claims.

In addition we and the other cement and non-metallic minerals companies have filed an anti-trust claim (“ denuncia contra barreras burocráticas de acceso al Mercado” ), with the National Institute for the Protection of Competition and Intellectual Property ( Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual , or “INDECOPI”), to have certain provisions of the Royalty Mining Law regulations declared illegal, and, therefore, not applicable. However, we cannot assure you that our interpretation will prevail and we cannot estimate a timeline for the resolution of this claim.

Operating Segments

We have three operating segments: (i) cement, concrete and blocks, (ii) quicklime and (iii) third-party construction supplies. In the past, we have also sold zinc calcine in smaller quantities recorded under the caption “Other”. For additional information on our operating segments, see note 30 to our annual audited consolidated financial statements included in this annual report.

New Accounting Pronouncements

For a description of new interpretations and improvements to IFRS issued by the IASB applicable to us for periods beginning on or after January 1, 2012, see note 4 to our annual audited consolidated financial statements included in this annual report.

Critical Accounting Policies

The following is a discussion of our application of critical accounting policies that require our management to make certain assumptions about matters that are uncertain at the time the accounting estimate is made, where our management could reasonably use different estimates, or where accounting changes may reasonably occur from period to period, and in each case would have a material effect on our financial statements. For additional information, see note 2.3 to our annual audited consolidated financial statements included in this annual report.

 

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Determination of Useful Live of Assets for Depreciation and Amortization Purposes

Depreciation of assets used in the mining production process is charged to cost of production on a units-of-production basis using proved reserves. Other assets are depreciated on a straight-line-basis over their estimated useful lives, as follows:

 

Property, Plant and Equipment

  

Estimated Years of
Useful Life

Buildings and other construction:

  

Administrative facilities

   Between 35 and 48

Main production structures

   Between 30 and 49

Minor production structures

   Between 20 and 35

Machinery and equipment:

  

Mills and horizontal furnaces

   Between 42 and 49

Vertical furnaces, crushers and grinders

   Between 23 and 36

Electricity facilities and other minors

   Between 12 and 35

Furniture and fixtures

   10

Transportation units:

  

Heavy units

   Between 11 and 21

Light units

   Between 8 and 11

Computer equipment

   4

Tools

   Between 5 and 10

The asset’s residual value, useful lives and methods of depreciation/amortization are reviewed at each reporting period, and adjusted prospectively, if appropriate.

An item of property, plant and equipment and any significant part initially recorded in the financial statements is reversed upon disposal or when no future economic benefits are expected from its use or disposal. Any gain or loss arising on recognition of the asset (calculated as the difference between the net disposal proceeds and the carrying amount of the asset) is included in the consolidated income statement when recognition of the asset is reversed.

Exploration, Evaluation and Mine Development Costs

We review and evaluate our accounting policies regarding exploration, evaluation and mine development costs, which requires judgment in determining whether it is likely that future exploitation will result in future economic benefits. The determination of reserves and mineral resources is a complex estimate that entails varying degrees of uncertainly depending on sub-classification. These estimates directly impact the point of deferral of exploration, evaluation and mine development costs. The deferral policy requires us to make certain estimates and assumptions about future events or circumstances, in particular, whether an economically viable extraction operation can be established. Estimates and assumptions made may change as new information becomes available. If, after the expenditure is capitalized, information becomes available suggesting that we are unlikely to recover the expenditure, the amount capitalized is written off in our consolidated income statement for the period in which the new information becomes available.

Determination of our Reserves and Resources

Our reserves are estimates of the amount of ore that can be economically and legally extracted from our mining properties. We estimate our ore reserves and mineral resources, based on information compiled by appropriately qualified persons relating to the geological data with respect to size, depth and shape of the ore body. Estimates require complex geological judgments to interpret the data. Estimates of recoverable reserves are based upon factors such as estimates of foreign exchange rates, commodity prices, future capital requirements, and production costs along with geological assumptions and judgments made in estimating the size and grade of the ore body. Changes in the reserve or resource estimates may affect the carrying value of exploration and evaluation assets, property, plant and equipment, provision for rehabilitation and depreciation and amortization charges.

 

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Rehabilitation Provision

We record the present value of estimated costs of legal obligations required to restore operating property in the period in which the obligation is incurred. Rehabilitation costs are provided at the present value of expected costs to satisfy the obligation using estimated cash flows and are recorded as part of the cost of that particular asset. The cash flows are discounted at the current pre-tax rate that reflects the risk specific to the rehabilitation provision. The unwinding of the discount is recorded when incurred and recorded in the income statement as a finance cost. The estimated future costs of rehabilitation are reviewed annually and adjusted as appropriate. Changes in the estimated future costs or in the discount rate applied are added to or deducted from the cost of the asset.

Revenue Recognition

Revenue is recognized to the extent it is probable that we will obtain the economic benefits and the revenue can be reliably measured, regardless of when the payment is being made. Revenue is measured at the fair value of the consideration received or receivable, taking into account contractually defined terms of payment and excluding taxes or duty. We assess our revenue arrangements against specific criteria in order to determine if we are acting as principal or agent. We have concluded that we have acted as a principal in all of our revenue arrangements.

The following specific recognition criteria must be also met before revenue is recognized:

Net Sales

Revenue from net sales is recognized when the significant risks and rewards of ownership have been transferred to the buyer upon delivery of the goods.

Sales of Zinc Calcine

Revenues from sales of zinc calcine are recognized when the significant risks and rewards of ownership are transferred to the buyer. The revenue is subject to adjustments based on inspection of the quantity and quality of the product by the customer. Revenue is initially recognized on a provisional basis using our best estimate of the quantity and quality of zinc. Any subsequent adjustments to the initial estimate of metal content, which generally occur within a 90-day period from when zinc calcine is transferred to the buyer, are recorded in revenue once they have been determined. There are no adjustments related to price because our sales of zinc calcine are based on fixed prices. See “Item 5. Operating and Financial Review and Prospects—A. Operating and Financial Review and Prospects—Factors Affecting our Results of Operations—Suspension of Zinc Calcine Operations.”

Operating Lease Income

Income from operating lease of mining concessions is recognized on a monthly accrual basis during the term of the lease, and is calculated based on market prices, which are applied to monthly copper production. Revenues from lease of mining concessions were generated until March 31, 2010, when we sold our Raul copper concession. See note 22(a) to our annual audited consolidated financial statements included in this annual report.

Interest Income

Revenue is recognized when interest accrues, using the effective interest rate. Interest income is recorded in finance income in our consolidated income statements.

Impairment of Non-Financial Assets

We assess at each reporting date whether there is an indication that an asset may be impaired. If any indication exists, or when annual impairment testing for an asset is required, we estimate the asset’s recoverable value. An asset’s recoverable value is the higher of an asset’s or cash-generating unit’s fair value less cost to sell and its value in use and is determined for an individual asset, unless the asset does not generate net cash flows that are largely independent of those from other assets or groups of assets. Where the carrying amount of an asset’s cash-generating

 

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unit exceeds its recoverable amount, the asset is considered impaired and is written down to its recoverable amount. In assessing value in use, the estimated future cash flows are discounted to their present value using a pre-tax discount rate that reflects current market assessments of the time value of money and the risks specific to the asset. In determining fair value less costs to sell, recent market transactions are taken into account, if available. If no such transactions can be identified, an appropriate valuation model is used. These calculations are corroborated by valuation multiples, quoted share prices for publicly traded subsidiaries or other available fair value indicators.

Impairment losses of continuing operations, including impairment on inventories, are recorded in the consolidated income statement in those expense categories consistent with the function of the impaired asset.

An assessment is made at each reporting date as to whether there is any indication that previously recognized impairment losses may no longer exist or may have decreased. If such indication exists, we estimate the asset’s or cash-generating unit’s recoverable value. A previously recognized impairment loss is reversed only if there has been a change in the assumptions used to determine the asset’s recoverable value since the last impairment loss was recognized. The reversal is limited so that the carrying amount of the asset does not exceed its recoverable value, nor exceed the carrying amount that would have been determined, net of depreciation, had no impairment loss been recognized for the asset in prior years. Such reversal is recognized in the consolidated income statement. Exploration and evaluation assets are tested for impairment annually as of December 31, either individually or at the cash-generating unit level, as appropriate and when circumstances indicate that the carrying value may be impaired.

Deferred Tax

Deferred tax is calculated using the liability method on temporary differences at the reporting date between the tax bases of assets and liabilities and their carrying amounts for financial reporting purposes.

Deferred tax liabilities are recognized for all taxable temporary differences, except with respect to taxable temporary differences associated with investments in subsidiaries and associates, where the timing of the reversal of the temporary differences can be controlled and it is probable that the temporary differences will not reverse in the foreseeable future.

Deferred tax assets are recognized for all deductible temporary differences, carry forward of unused tax credits and unused tax losses, to the extent that it is probable that taxable profit will be available against which the deductible temporary differences, and the carry forward of unused tax credits and unused tax losses can be utilized, except with respect to deductible temporary differences associated with investment subsidiaries and associates, where deferred assets are recognized only to the extent that it is probable that the temporary differences will reverse in the foreseeable future and taxable profit will be available against which the temporary differences can be utilized.

The carrying amount of deferred tax assets is reviewed at each reporting date and reduced to the extent it is no longer probable that sufficient taxable profit will be available to allow all or part of the deferred tax asset to be utilized. Unrecognized deferred tax assets are reassessed at each reporting date and are recognized to the extent it has become probable that future taxable profits will allow the deferred tax asset to be recovered.

Deferred tax assets and liabilities are measured at the tax rates that are expected to apply in the year when the asset is realized or the liability is settled, based on tax rates (and tax laws) that have been enacted or substantively enacted at the reporting date.

Deferred tax items are recognized in correlation with the underlying transaction either in other comprehensive income or directly in equity.

Deferred tax assets and deferred tax liabilities are offset if a legally enforceable right exists to set off current tax assets against current income tax liabilities and the deferred taxes relate to the same taxable entity and the same taxation authority.

 

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Results of Operations

Comparison of Year ended December 31, 2011 to year ended December 31, 2012

 

     Year ended December 31,        

(amounts in millions of S/.)

   2011     2012     Variation  

Net sales

     S/.995.0        S/.1,169.8        17.6

Cost of sales

     (569.5     (713.0     25.2   
  

 

 

   

 

 

   

 

 

 

Gross profit

     425.5        456.8        7.4   

Operating income (expense):

      

Selling and distribution expenses

     (23.7     (30.9     30.4   

Administrative expenses

     (196.2     (203.1     3.5   

Net gain on sale of land and mining concessions

     —          —          N/M   

Impairment of zinc mining assets

     (96.0     —          N/M   

Other operating income, net

     9.3        7.7        (17.2
  

 

 

   

 

 

   

Total operating income (expense), net

     (306.6     (226.3     (26.2
  

 

 

   

 

 

   

Operating profit

     118.9        230.5        93.9   

Other income (expense):

      

Finance income

     2.7        23.3        N/M   

Finance costs

     (19.2     (23.8     24.0   

Gain (loss) from exchange difference, net

     1.5        (0.7     N/M   
  

 

 

   

 

 

   

Total other expenses, net

     (15.0     (1.2     (92.0
  

 

 

   

 

 

   

Profit before income tax

     103.9        229.3        120.9   

Income tax expense

     (38.4     (73.7     91.9   
  

 

 

   

 

 

   

Profit

     65.5        155.6        137.6   
  

 

 

   

 

 

   

 

 

 

N/M means not meaningful.

Net Sales

The following table sets forth a breakdown of our net sales by segment for the years 2011 and 2012.

 

     Year December 31,  
     2011      2012  
     (in millions
of S/.)
     %      (in millions
of S/.)
     %  

Cement, concrete and blocks

     803.0         80.7         972.2         83.1   

Quicklime

     45.9         4.6         52.7         4.5   

Construction supplies

     143.3         14.4         143.2         12.2   

Other(1)

     2.8         0.3         1.7         0.2   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

     995.0         100.0         1,169.8         100.0   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Principally zinc calcine.

Our total net sales increased by 17.6%, or S/.174.8 million, from S/.995.0 million for 2011 to S/.1,169.8 million for 2012. This increase was primarily due to the following factors:

 

   

a 21.1%, or S/.169.2 million, increase in the sales of cement, concrete and blocks. The volume of cement sold increased 16.6%, from 1.9 million metric tons for 2011 to 2.2 million metric tons for 2012, as a result of increased construction levels;

 

   

a 14.8%, or S/.6.8 million, increase in the sales of quicklime due to an increase in the dispatch to mining companies; and

 

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Cost of Sales

The following table sets forth a breakdown of our cost of sales by segment for the years 2011 and 2012.

 

     Year ended December 31,  
     2011      2012  
     (in millions
of S/.)
     %      (in millions
of S/.)
     %  

Cement, concrete and blocks

     394.2         69.2         531.7         74.6   

Quicklime

     33.8         5.9         39.8         5.6   

Construction supplies

     138.9         24.4         138.3         19.4   

Other(1)

     2.6         0.5         3.2         0.4   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

     569.5         100.0         713.0         100.0   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Principally zinc calcine.

Our total cost of sales increased by 25.2%, or S/.143.5 million, from S/.569.5 million for 2011 to S/.713.0 million for 2012, primarily due to the following factors:

 

   

a 34.9%, or S/.137.5 million, increase in the cost of sales of cement, concrete and blocks, due primarily to the greater volume of cement sold, and an increase in the cost of clinker due to the corrective maintenance of our principal kilns, which increase unit cost of clinker (produced and imported)

 

   

a 17.8%, or S/.6.0 million, increase in the cost of sales of quicklime, due to an increase in the volume sale of quicklime;

In addition, our cost of sales denominated in U.S. dollars was positively affected by the depreciation of the U.S. dollar versus the nuevo sol during 2012 as compared to 2011. See “Item 3. Key Information—A. Selected Financial Data—Exchange Rates.” We estimate that, as a result of this depreciation in the U.S. dollar versus the nuevo sol, our cost of sales decreased by approximately S/.6.8 million during 2012 as compared to 2011.

Gross Profit

The following table sets forth a breakdown of our gross profit and gross profit margin by segment for the years 2011 and 2012.

 

     Year ended December 31,  
     2011      2012  
     Gross
profit
     Gross
profit
margin
     Gross
profit
    Gross
profit
margin
 
     (in millions
of S/.)
     %      (in millions
of S/.)
    %  

Cement, concrete and blocks

     408.8         50.9         440.5        45.3   

Quicklime

     12.1         26.4         12.9        24.5   

Construction supplies

     4.4         3.1         4.9        3.4   

Other

     0.2         7.1         (1.5     -88.2   
  

 

 

    

 

 

    

 

 

   

 

 

 

Total gross profit

     425.5         42.8         456.8        39.0   
  

 

 

    

 

 

    

 

 

   

 

 

 

 

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Total gross profit increased by 7.4%, or S/.31.3 million, from S/.425.5 million for 2011 to S/.456.8 million for 2012, mainly as a result of the increased volume of cement sold and quicklime. Our gross profit margin (i.e., gross profit as a percentage of net sales) for 2012 was 39.0% compared to 42.8% for 2011.

Operating Expenses, Net

Our operating expenses primarily reflect administrative and selling and distribution expenses. In 2011, we recorded a non-cash impairment of S/.96.0 million with respect to our zinc mining assets due to a sudden and sharp drop in the international price of zinc in September 2011 and based on our expectation of future zinc mining prices. Our operating expenses decreased by S/.80.3 million from S/.306.6 million for 2011 to S/.226.3 million for 2012. Excluding the effect of the impairment with respect to our zinc mining assets, our operating expenses, net, increased by S/.15.7 million, primarily due to a S/.6.9 million increase in administrative expenses and a S/.7.2 million increase in selling and distribution expenses during 2012 compared to 2011.

Selling and Distribution Expenses

 

     Year ended
December 31,
 

(in millions of S/.)

   2011      2012  

Personnel expenses

     10.1         14.0   

Advertising and promotion expenses

     8.4         10.8   

Other

     5.2         6.1   
  

 

 

    

 

 

 

Total

     23.7         30.9   
  

 

 

    

 

 

 

Our total selling and distribution expenses increased 30.4%, or S/.7.2 million, from S/.23.7 million for 2011 to S/.30.9 million for 2012. This increase relates primarily to an increase in personnel expenses in 2012 as compared to 2011 as consequence of our commercial strategy, which consists of creating loyalty among retailers and end-consumers. Likewise, during 2012, there was an increase in advertising and promotional expenses compared to 2011, directly linked to the rise in sales volume.

Selling and distribution expenses related to the cement, concrete and blocks segment represented approximately 87.9% of total selling and distribution expenses for 2012, compared to 83.0% for 2011. Selling and distribution expenses related to the quicklime, construction supplies and other segments represented approximately 2.7%, 7.8% and 1.6%, respectively, of total selling and distribution expenses for 2012, compared to 3.1%, 10.5% and 3.4%, respectively, for 2011.

Administrative Expenses

 

     Year ended
December 31,
 

(in millions of S/.)

   2011      2012  

Personnel expenses

     90.3         91.7   

Third-party services

     80.6         82.0   

Board of directors compensation

     5.4         5.1   

Depreciation and amortization

     9.5         10.7   

Taxes

     2.8         2.8   

Consumption of supplies

     3.1         3.2   

Donations

     3.7         6.8   

Others

     0.8         0.8   
  

 

 

    

 

 

 

Total

     196.2         203.1   
  

 

 

    

 

 

 

 

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Our administrative expenses increased 3.5%, or S/.6.9 million, from S/.196.2 million for 2011 to S/.203.1 million for 2012, principally due an increase in the number of people involved in our projects for the period. Third-party services increased as a result of higher professional fees associated with the costs resulting from our initial public offering of ADSs in 2012 and our ongoing obligations as a public company.

Administrative expenses related to the cement, concrete and blocks segment accounted for approximately 83.3% of total administrative expenses for 2012 compared to approximately 85.7% for 2011. Administrative expenses related to the quicklime, construction supplies and other segments accounted for approximately 5.0%, 1.3% and 10.4%, respectively, of total administrative expenses for 2012compared to approximately 5.3%, 2.5% and 6.6%, respectively, for 2011.

Other Operating Income, Net

Our other operating income, net decreased S/.1.6 million, from S/.9.3 million in 2011 to S/.7.7 million in 2012.

Operating Profit

As a result of the foregoing, our operating profit increased by 93.9%, or S/.111.6 million, from S/.118.9 million for 2011 to S/.230.5 million for 2012. Our operating profit margin (i.e., operating profit as a percentage of net sales) for 2012 was 19.7% compared to 11.9% for 2011. Excluding the effect of the impairment with respect to our zinc mining assets, our operating profit increased by 7.3%, or S/.15.6 million, from S/.214.9 million for 2011 to S/.230.5 million for 2012. Our operating profit margin for 2012 was 19.7% compared to 21.6% in 2011.

Other Income (Expenses), Net

Our other expenses, net decreased by 92.0 %, or S/.13.8 million, from S/.15.0 million for 2011 to S/.1.2 million for 2012, mainly due to a financial income increase resulting from our February 2012 initial public offering of ADSs and an increase in our financial income principally as a result of increased interest income earned on time deposits into which we have invested the proceeds from our initial public offering in 2012, which was partially offset by an increase in our finance costs, resulting from the repayment of debt.

Income Tax Expense

Our income tax expense increased by 91.9%, or S/.35.3 million, from S/.38.4 million for 2011 to S/.73.7million for 2012, mainly due to a deferred income tax benefit related to the impairment with respect to our zinc mining assets of approximately S/.28.8 million, which was recorded in 2011. Our effective tax rate for 2011 and 2012 was 37.0% and 32.2%, respectively.

Profit

As a result of the foregoing, our profit for 2012 increased 137.6%, or S/.90.1 million, from S/.65.5 million for 2011 to S/.155.6 million for 2012. Excluding the effect of the impairment with respect to our zinc mining assets, our profit increased by 17.3%, or S/.22.9 million in 2012 compared to 2011.

Comparison of Year ended December 31, 2010 to Year ended December 31, 2011

 

     Year ended
December 31,
       

(amounts in millions of S/.)

   2010     2011     Variation  

Net sales

     S/.898.0        S/.995.0        10.8

Cost of sales

     (479.1     (569.5     18.9   
  

 

 

   

 

 

   

 

 

 

Gross profit

     419.1        425.5        1.5   

Operating income (expense):

      

Selling and distribution expenses

     (16.5     (23.7     43.6   

Administrative expenses

     (158.7     (196.2     23.6   

Net gain on sale of land and mining concessions

     75.9        —          N/M   

 

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Impairment of zinc mining assets

     —          (96.0     N/M   

Other operating income, net

     16.6        9.3        (44.0
  

 

 

   

 

 

   

Total operating income (expense), net

     (82.7     (306.6     N/M   
  

 

 

   

 

 

   

Operating profit

     336.4        118.9        (64.7

Other income (expense):

      

Finance income

     3.3        2.7        (18.2

Finance costs

     (15.0     (19.2     28.0   

Gain from exchange difference, net

     2.6        1.5        (42.3
  

 

 

   

 

 

   

Total other expenses, net

     (9.2     (15.0     63.0   
  

 

 

   

 

 

   

Profit before income tax

     327.2        103.9        (68.2

Income tax expense

     (104.1     (38.4     (63.1
  

 

 

   

 

 

   

Profit

     223.1        65.5        (70.6
  

 

 

   

 

 

   

 

 

 

N/M means not meaningful.

Net Sales

The following table sets forth a breakdown of our net sales by segment for the years 2010 and 2011.

 

     Year December 31,  
     2010      2011  
     (in millions
of S/.)
     %      (in millions
of S/.)
     %  

Cement, concrete and blocks

     728.3         81.1         803.0         80.7   

Quicklime

     57.7         6.4         45.9         4.6   

Construction supplies

     96.1         10.7         143.3         14.4   

Other(1)

     15.9         1.8         2.8         0.3   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

     898.0         100.0         995.0         100.0   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Principally zinc calcine.

Our total net sales increased by 10.8%, or S/.97.0 million, from S/.898.0 million for 2010 to S/.995.0 million for 2011. This increase was primarily due to the following:

 

   

a 10.3%, or S/.74.7 million, increase in the sales of cement, concrete and blocks. The volume of cement sold increased 7.3%, from 1.8 million metric tons for 2010 to 1.9 million metric tons for 2011, as a result of increased construction levels; and

 

   

a 49.1%, or S/.47.2 million, increase in sales of third-party construction supplies, as a result of increased construction levels and an increase in the price of steel rebars we resold;

 

   

partially offset by a 20.5%, or S/. 11.8 million, decrease in the sales of quicklime due to a decline in purchases from the Yanacocha mine, our principal quicklime customer, as a result of their focus on exploration activities due to declining production; and

 

   

a S/.13.1 million decrease in the sales of zinc calcine due to a decrease in volume sold, as we sold off our remaining stock of zinc calcine. We suspended our zinc mining activities in 2008 due to adverse market conditions and redeployed our equipment to produce quicklime.

 

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Cost of Sales

The following table sets forth a breakdown of our cost of sales by segment for the years 2010 and 2011.

 

     Year ended December 31,  
     2010      2011  
     (in millions
of S/.)
     %      (in millions
of S/.)
     %  

Cement, concrete and blocks

     330.0         68.9         394.2         69.2   

Quicklime

     36.8         7.7         33.8         5.9   

Construction supplies

     93.3         19.5         138.9         24.4   

Other(1)

     19.0         4.0         2.6         0.5   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

     479.1         100.0         569.5         100.0   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Principally zinc calcine.

Our total cost of sales increased by 18.9%, or S/.90.4 million, from S/.479.1 million for 2010 to S/.569.5 million for 2011, primarily due to the following:

 

   

a 19.5%, or S/.64.2 million, increase in the cost of sales of cement, concrete and blocks, due primarily to the greater volume of cement sold and, to a lesser extent, costs related to the expansion of our business, as well as cement production and transportation in 2011 compared to 2010; and

 

   

a 48.9%, or S/.45.6 million, increase in the cost of sales of third-party construction supplies, due to the greater volume of construction supplies sold and an increase in the price of steel rebars purchased;

 

   

partially offset by a 8.2%, or S/.3.0 million, decrease in the cost of sales of quicklime, due to a decrease in the volume of quicklime sold; and

 

   

a S/.16.4 million decrease in the cost of sales of zinc calcine, as we sold small quantities of zinc calcine during 2011.

In addition, our cost of sales denominated in U.S. dollars was positively affected by the depreciation of the U.S. dollar versus the nuevo sol during 2011 as compared to 2010. See “Item 3. Key Information—A. Selected Financial Data—Exchange Rates.” We estimate that, as a result of this depreciation in the U.S. dollar versus the nuevo sol, our cost of sales decreased by approximately S/.2.8 million during 2011 as compared to 2010.

Gross Profit

The following table sets forth a breakdown of our gross profit and gross profit margin by segment for the years 2010 and 2011.

 

     Year ended December 31,  
     2010     2011  
     Gross
profit
    Gross
profit
margin
    Gross
profit
     Gross
profit
margin
 
     (in millions
of S/.)
    %     (in millions
of S/.)
     %  

Cement, concrete and blocks

     398.3        54.7        408.8         50.9   

Quicklime

     20.9        36.2        12.1         26.4   

Construction supplies

     2.8        2.9        4.4         3.1   

Other

     (3.1     (18.8     0.2         7.1   
  

 

 

   

 

 

   

 

 

    

 

 

 

Total gross profit

     419.1        46.7        425.5         42.8   
  

 

 

   

 

 

   

 

 

    

 

 

 

Total gross profit increased by 1.5%, or S/.6.4 million, from S/.419.1 million for 2010 to S/.425.5 million for 2011, mainly as a result of the increased volume of cement sold. Our gross profit margin ( i.e. , gross profit as a percentage of net sales) for 2011 was 42.8% compared to 46.7% for 2010.

 

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Operating Income (Expense), Net

Our operating expenses primarily reflect administrative and selling and distribution expenses. However, in 2010, we recorded a net gain of S/.75.9 million derived from the proceeds of the sale of the Raul copper mine concessions and S/.5.3 million in rental income from related lease payments prior to the sale. In addition, during 2011, we recorded a non-cash impairment of S/.96.0 million with respect to our zinc mining assets due to a sudden and sharp drop in the international price of zinc in September 2011 and based on our expectation of future zinc mining prices.

Our operating expenses increased by S/.223.9 million from S/.82.7 million for 2010 to S/.306.6 million for 2011, primarily due to the non-cash impairment of S/.96.0 million recorded in 2011 with respect to our zinc mining assets, as well as the net gain of S/.75.9 million recorded in 2010 from the sale in March 2010 of our Raul copper mine concessions and a loss of S/.5.3 million in rental income from related lease payments as a result of the termination of the lease in connection with the sale of the concessions.

Excluding the effect of the impairment with respect to our zinc mining assets, and the effect of the sale of the Raul mine concession and the termination of the related lease, our operating expenses, net increased by S/.52.1 million, primarily due to a S/.37.5 million increase in administrative expenses and a S/.7.2 million increase in selling and distribution expenses in 2011 compared to 2010.

Selling and Distribution Expenses

 

     Year ended
December 31,
 

(in millions of S/.)

   2010      2011  

Personnel expenses

     8.3         10.1   

Advertising and promotion expenses

     5.2         8.4   

Other

     3.0         5.2   
  

 

 

    

 

 

 

Total

     16.5         23.7   
  

 

 

    

 

 

 

Our total selling and distribution expenses increased 43.6%, or S/.7.2 million, from S/.16.5 million for 2010 to S/.23.7 million for 2011. This increase relates primarily to advertising and promotion expenses due to greater promotional sales efforts with respect to our cement, concrete and block products in 2011 compared to 2010.

Selling and distribution expenses related to the cement, concrete and blocks segment represented approximately 83.0% of total selling and distribution expenses for 2011, compared to 82.0% for 2010. Selling and distribution expenses related quicklime, to the construction supplies and other segments represented approximately 3.1%, 10.5% and 3.4%, respectively, of total selling and distribution expenses for 2011, compared to 3.0%, 10.9% and 4.1%, respectively, for 2010.

Administrative Expenses

 

     Year ended
December 31,
 

(in millions of S/.)

   2010      2011  

Personnel expenses

     73.4         90.3   

Third-party services

     52.3         80.6   

Board of directors compensation

     15.2         5.4   

Depreciation and amortization

     6.6         9.5   

Taxes

     4.0         2.8   

Consumption of supplies

     3.8         3.1   

Donations

     2.7         3.7   

Others

     0.6         0.7   
  

 

 

    

 

 

 

Total

     158.7         196.2   
  

 

 

    

 

 

 

 

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Our administrative expenses increased 23.6%, or S/.37.5 million, from S/.158.7 million for 2010 to S/.196.2 million for 2011, principally due to increases in personnel and third-party services. Personnel expenses increased by S/.16.9 million in 2011, mainly due to a provision related to our long-term cash bonus incentives that we implemented in 2011 as part of our new executive compensation plan, a one-time payment related to the retirement of certain members of our management, and one-time workers’ profit sharing expenses in relation with the sale of a minority equity interest in our subsidiary Fosfatos to an affiliate of Mitsubishi. Third-party services, which included security, consulting (including auditing), freight, cleaning and communication services, among others, increased by S/.28.3 million. This increase was partially offset by a decline in compensation to our board of directors in 2011 due to the gain in 2010 from the sale of the Raul copper mine concessions, as well as our recent decision to change the compensation for our board of directors. See “Item. 6 Directors, Senior Management and Employees.”

Administrative expenses related to the cement, concrete and blocks segment accounted for approximately 85.7% of total administrative expenses for 2011 compared to approximately 80.8% for 2010. Administrative expenses related to the quicklime, construction supplies and other segments accounted for approximately 5.3%, 2.5% and 6.6%, respectively, of total administrative expenses for 2011 compared to approximately 8.7%, 1.6% and 8.9%, respectively, for 2010.

Other Operating Income, Net

Our other operating income, net decreased S/.7.3 million, from S/.16.6 million for 2010 to S/.9.3 million for 2011, mainly due to the loss of rental income related to the Raul copper mine concessions, since we sold it in March 2010.

Operating Profit

As a result of the foregoing, our operating profit decreased by 64.7%, or S/.217.5 million, from S/.336.4 million for 2010 to S/.118.9 million for 2011. Our operating profit margin ( i.e. , operating profit as a percentage of net sales) for 2011 was 11.9% compared to 37.5% for 2010. Excluding the effect of the impairment with respect to our zinc mining assets, and the effect of the sale of the Raul mine concession and the termination of the related lease, our operating profit decreased by 15.8%, or S/.40.4 million, from S/.255.3 million for 2010 to S/.214.9 million for 2011. Our operating profit margin for 2011 was 21.6% compared to 28.4% for 2010.

Other Income (Expenses), Net

Our other expenses, net increased by 63.0%, or S/.5.8 million, from S/.9.2 million for 2010 to S/.15.0 million for 2011, mainly due to a 28.0%, or S/.4.2 million, increase in finance costs, as a result of an increase in our indebtedness, and a S/.1.1 million decrease in gain from exchange differences, net due to variations in our U.S. dollar denominated cash position and short-term deposits versus loans and borrowings.

Income Tax Expenses

Our income tax expense decreased by 63.1%, or S/.65.7 million, from S/.104.1 million for 2010 to S/.38.4 million for 2011, mainly due to tax expenses of approximately S/.22.9 million relating to the net gain from the sale of the Raul copper mine concessions recorded in 2010, and the deferred income tax benefit related to the impairment with respect to our zinc mining assets of approximately S/.28.8 million. Our effective tax rate for 2010 and 2011 was 31.8% and 37.0%, respectively.

Profit

As a result of the foregoing, our profit for 2011 decreased 70.6%, or S/.157.6 million, from S/.223.1 million for 2010 to S/.65.5 million for 2011. Excluding the effect of the impairment with respect to our zinc mining assets, and the effect of the sale of the Raul copper mine concessions and the termination of the related lease, our profit decreased by 3.3%, or S/.5.5 million in 2011 compared to 2010.

 

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B. Liquidity and Capital Resources

Our main cash requirements are our operating expenses, capital expenditures relating to the maintenance and expansion of our facilities, the servicing of our debt, the payment of dividends and payment of taxes. Our primary sources of cash have been cash flow from operating activities, and, to a lesser extent, loans and other financings. We believe that these sources of cash will be sufficient to cover our working capital needs in the ordinary course of our business.

Cash Flows

The table below sets forth certain components of our cash flows for the years ended December 31, 2010, 2011 and 2012.

 

     Year ended December 31,  

(in millions of S/.)

   2010     2011     2012  

Net cash provided by operating activities

     179.6        132.3        99.7   

Net cash provided by (used in) investing activities

     (19.3     (239.2     (667.4

Net cash provided by (used in) financing activities

     (115.4     316.0        273.7   
  

 

 

   

 

 

   

 

 

 

Increase (decrease) in cash

     44.9        209.1        (294.0
  

 

 

   

 

 

   

 

 

 

Cash Flow from Operating Activities

Net cash flow from operating activities decreased 24.6%, or S/. 32.6, from S/. 132.3 in 2011 to S/. 99.7 in 2012, due to higher tax expenses related to the sale of 30.0% of the Company’s subsidiary Fosfatos del Pacifico S.A. to a subsidiary of Mitsubishi, as well as to the purchase of imported clinker, among others.

Net cash flow from operating activities decreased 26.3%, or S/. 47.3, from S/. 179.6 in 2011 to S/. 132.3 in 2012, due to changes in working capital in 2011, as inventories and accounts payables increased. Inventories increased due to an increase in work-in-progress and purchases of raw materials as a result of higher sales volume. Accounts payables increased as a result of the purchase of material and supplies.

Cash Flow from Investing Activities

Net cash flow used in investing activities was S/.667.4 million, primarily related to time deposits into which we have invested the proceeds from our initial public offering in 2012. Net cash flow used in investing activities in 2011 was S/.239.2 million, which primarily related to the purchase of property, plant and equipment, including capital expenditures relating to the final construction stages of the diatomite brick plant, construction work relating to the expansion of our Rioja plant, purchase of equipment for our new cement plant in Piura and other investing activities.

Net cash flow used in 2010 was S/.19.3 million, which is primarily related to the purchase of property, plant and equipment, partially offset by proceeds from the sale of Raul Copper mine concessions.

Cash Flow from Financing Activities

Net cash flow from financing activities in 2012 was S/.273.7, primarily due to the cash received from our initial public offering in 2012, which was partially offset by the payment of debt.

Net cash flow provided by financing activities in 2011 was S/.316.0 million, primarily as a result of by proceeds received from short-term credit loans with Banco de Crédito del Perú and BBVA Banco Continental, a new long-term secured loan with BBVA Banco Continental and the sale of a minority equity interest in our subsidiary Fosfatos to an affiliate of Mitsubishi, partially offset by payments on debt service and dividends.

Net cash flow used in financing activities in 2010 was S/.115.4 million, primarily as a result of debt repayment and dividend payments.

 

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Indebtedness

As of December 31, 2012, we had total outstanding indebtedness of S/.215.5 million (US$84.5 million) as set forth in the table below.

 

(amounts in millions of S/.)

   As of
December 31,
2012
     Interest
rate
    Maturity
date

BBVA Banco Continental secured loan

     202.2         6.75   December 2018

BBVA Banco Continental

     13.3         4.31   Marzo 2013

BBVA Banco Continental Secured Loan. In December 2011, we entered into a secured loan with BBVA Banco Continental in the amount of S/.202.2 million (US$77.8 million) accruing interest at an annual rate of 6.37% for the first year, 6.64% for the second year and 7.01% for the following years, and maturing in December 2018. The loan is secured by our current collateral trust, which holds substantially all of our assets at our Pacasmayo facility and our Acumulación Tembladera quarry. In addition, the loan contains the following financial covenants during the term of the loan:

 

   

a liquidity ratio (current assets divided by current liabilities) greater than 1.0x;

 

   

a leverage ratio (net debt divided by EBITDA) lower than 3.0x; and

 

   

an interest coverage ratio (EBITDA divided by debt service requirements) greater than 1.2x.

As of December 31, 2012, we were in compliance with all of these financial covenants.

This debt was paid in full in February 2013.

BBVA Banco Continental Overdraft Loan. In December 2012, we entered into an overdraft loan with BBVA Banco Continental in the amount of S/.50 million (US$19.6 million), of which we used S/. 13.3 million (US$5.2 million) accruing interest at an annual rate of 4.31%.

International Bonds. In February 2013, we issued US$300,000,000 of our 4.50% Senior Notes due in 2023, as part of our first international bond offering. Proceeds have been used to prepay amounts outstanding our secured loan agreement with BBVA Banco Continental and the remaining will be used in capital expenditures incurred in connection with the construction and operation of the new Piura plant and our cement business.

The Senior Notes contains certain covenants, including restrictions on our and our guarantor subsidiaries’ ability to incur further indebtedness or issue disqualified stock and preferred stock, unless the following conditions are met:

 

   

the fixed charge coverage ratio for our most recently ended four fiscal quarters for which internal consolidated financial statements are available immediately preceding the date on which such additional indebtedness is incurred or such disqualified stock or such preferred stock is issued, as the case may be, would have been at least 2.5 to 1.0; and

 

   

the consolidated debt to EBITDA ratio for the our most recently ended four fiscal quarters for which internal consolidated financial statements are available immediately preceding the date on which such additional indebtedness is incurred or such disqualified stock or such preferred stock is issued, as the case may be, would have been no greater than 3.5 to 1.0,

in each case, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional indebtedness had been incurred or the disqualified stock or the preferred stock had been issued, as the case may be, at the beginning of such four fiscal quarters.

In the Management’s opinion, we were in compliance with all of these financial covenants.

 

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Derivative Financial Instruments

As of December 31, 2012, we were not party to any derivative financial instruments. We do not currently hedge against fluctuations in interest rates, foreign currency exchange rates or commodity prices.

Capital Expenditures

See “Item 4—Information on the Company—A. History and Development of the Company—Capital Expenditures.”

 

C. Research and Development, Patents and Licenses

As of December 31, 2012, our research and development group consisted of 19 geologists and five scientists. Our research and development team is mainly focused on developing (i) an ideal mix of additives for our cement products in an effort to reduce the amount of clinker material in our cement; (ii) other concrete products with various practical applications, and (iii) products with specific characteristics that meet market demands. We believe our research and development department is an integral part of our strategy to develop innovative cement products by continuously studying the chemical composition of cement and making it adaptable to the requirements and specific needs of our end consumer.

 

D. Trend Information

Cement Market

The Peruvian Cement Market

Peru’s cement production is segmented into three principal geographic regions: the northern region, the central region, including Lima’s metropolitan area, and the southern region. The table below sets forth selected data with respect to each region in Peru and the corresponding cement manufacturers. Market share data is based on metric tons of cement delivered during 2012.

Geographic Breakdown

 

LOGO

Source: ASOCEM, INEI, ADUANET (SUNAT).

 

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The table below sets forth production by type of cement produced by each manufacturer in Peru

 

     Portland Cement     Other Portland Cements  

Business

   I     II     V     IP     I(PM)      MS     I Co  

UNACEM

   ü (1   ü (1   ü (1   ü        ü          

Pacasmayo plant

   ü        ü (2   ü        ü (3      ü (2   ü     

Rioja plant

   ü (1   ü (1 ),(4)    ü (1 ),(4)    ü             ü     

Cementos Sur

   ü        ü (2   ü (2   ü        ü          

Yura

   ü        ü (2   ü (2   ü        ü          

Source: ASOCEM

 

(1) Low alkaline content.
(2) Our Portland cement II is the same as our MS cement.
(3) We used to offer this type of cement through Selva; it is no longer available.
(4) Manufactured upon request.

Although a large part of housing construction is mainly concentrated in the Lima metropolitan area, located in the central region of Peru, the housing market in the provinces of Peru, including the northern region, has grown significantly in recent years. Despite this trend, Peru continues to have significant shortages in housing, with an estimated deficit 1.9 million homes nationwide, according to The Ministry of Housing, Construction and Sanitation. In addition, it is estimated that approximately 200,000 families have the ability to purchase homes, particularly in the northern and southern regions, according to a report for the year 2011 issued by the Peruvian Chamber of Construction. Economic growth, particularly in the mining and agribusiness sectors, rising employment levels and the implementation of real estate projects, have resulted in the creation of higher paying jobs, which have ultimately resulted in the expansion of the housing market.

Although Peru has improved by 21 places, from 110th in 2008 to 89th in 2012, on the Global Competitiveness Index prepared by the World Economic Forum which measures the quality of infrastructure, it continues to have a significant deficit in infrastructure. In recent years, significant efforts have been made to channel investments into the infrastructure sector through a series of initiatives that range from the creation of financial instruments (such as the infrastructure investment and trust funds) to regulatory changes.

Distribution and Logistics

Peru’s cement market is divided into three regions circumscribed primarily by the location of established production facilities. Our facilities are located in the northern region of Peru, UNACEM controls the central region, and Yura the southern region. Cement is mainly sold in bags of 42.5 kilograms (approximately 94 pounds). However, cement can also be sold in bulk according to customer requirements.

The transportation and storage of cement requires specialized equipment. A favorable location of the production facilities not only reduces the time required to transport cement products to distributors and third-party merchants but also diminishes the costs of necessary equipment and resources. The location of a cement plant relative to its distribution network provides operational efficiencies and advantages that translate into stronger market share.

Cement can be stored in silos for up to 12 months if the silo is completely humidity proof. The typical vehicles used for the transport of cement are adapted to maintain the necessary environment during shipment. The proximity of production plants and storage centers to distribution centers, third-party vendors and retail outlets, creates a more efficient supply chain and minimizes the time and resources required to transport products from the production line to the construction site. The streamlined nature of this process ensures that cement products in the northern region of Peru, for example, reach customers within approximately one week of production. A cement company’s success is inherently linked to the sophistication of its distribution network and its emphasis on quality assurance throughout the supply chain.

 

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Competitive Dynamics

The Peruvian cement market is comprised basically of three groups, which own seven cement producing companies:

 

   

Cementos Pacasmayo and Cementos Selva, which principally serve the northern region.

 

   

UNACEM, which principally serves the central region.

 

   

Cementos Yura and Cementos Sur, which primarily serve in the southern region.

The level of competitiveness of cement companies generally depends on their cost structure, which is a function of the cost of energy, fuel, costs of raw materials and transportation. Cement companies in Peru generally compete within the limits of their distribution market, which is determined principally by their geographic locations.

The following are the main characteristics of the cement sector in Peru:

 

   

highly fragmented consumer base;

 

   

low cost of energy and raw materials;

 

   

operations and distribution primarily determined by geographic location; and

 

   

high correlation to auto-construcción and public and private investments.

Phosphate Project

Phosphate

Phosphate rock is used to manufacture wet process phosphoric acid and superphosphoric acid. Most of the phosphoric acid is used as a component of granular and liquid ammonium phosphate fertilizers and animal feed supplements. In addition, phosphate is used in human food products, detergents and other industrial applications. Because phosphate derivatives are mainly used in the production of fertilizers, its price is linked to certain commodities, such as corn, soybean and wheat.

According to the United States Geological Survey, world total reserves of phosphate rock are estimated at approximately 67 million tons, with Morocco and the Western Sahara accounting for approximately 75% of the total global reserves. While nearly 30 countries produce phosphate products, China, the United States and Morocco are the largest producers, accounting for two-thirds of world production. The world’s top producing companies include Office Cherifien de Phosphate of Morocco, Mosaic Co. of the United States, FosAgro of Russia and Yuntianhua Group of China.

The following table sets forth world reserves and production levels for the periods indicated.

 

     Reserves      Production  

(in tons)

   2012      2011      2012E  

China(1)

     3,700,000         81,000         89,000   

United States

     1,400,000         28,100         29,200   

Morocco and Western Sahara

     50,000,000         28,000         28,000   

Russia

     1,300,000         11,200         11,300   

Jordan

     1,500,000         6,500         6,500   

Syria

     1,800,000         3,100         2,500   

South Africa

     1,500,000         2,500         2,500   

Algeria

     2,200,000         1,500         1,500   

Peru

     820,000         2,540         2,560   

Other countries

     2,780,000         33,560         36,940   
  

 

 

    

 

 

    

 

 

 

World total (rounded)

     67,000,000         198,000         210,000   
  

 

 

    

 

 

    

 

 

 

Source: U.S. Geological Survey, Mineral Commodity Summaries, 2013

 

(1) Production data for China do not include small mines

 

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Peru is one of the leading mining countries in the world with non-metallic potential, including phosphate. The Peruvian government has granted concessions over several phosphate projects located in the northern and central regions. In recent years, several companies have started investing in exploration and in carrying out feasibility studies in order to exploit these resources. These projects include the Bayóvar phosphate project, owned by Miski Mayo (Vale, Mosaic and Mitsui) that started production in July 2011 and our Fosfatos del Pacífico project, also located in Bayóvar area.

 

E. Off-Balance Sheet Arrangements

There are no off-balance sheet arrangements that have, or are reasonably likely to have, a current or future material effect on our results of operations, financial condition or liquidity.

 

F. Tabular Disclosure of Contractual Obligations

The following table sets forth our contractual obligations with definitive payment terms as of December 31, 2012.

 

     Payments due by period  

(in millions of S/.)

   Less than
1 Year
     1-3 Years      3-5 Years      More than
5 Years
     Total  

Indebtedness (1)

     22.9         105.9         77.0         9.7         215.5   

Future interest payments

     13.0         25.1         7.6         —           45.7   

Brine project(2)

     15.0         7.8         200.3         —           223.1   

Piura plant (3)

     61.6         61.6         —           —           123.2   

Cementos Selva plant

     6.4         —           —           —           6.4   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

     118.9         200.4         284.9         9.7         613.9   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Includes the BBVA Banco Continental Secured Loan and overdraft which were canceled on March 2013. See “Item 5. Operating and Financial Review and Prospects—B. Liquidity and Capital resources—Indebtedness.”
(2) Relates to our contractual commitment, in connection with the formation of Salmueras with Quimpac, to invest US$100.0 million to develop our brine project. The exact timing of our investment requirement is undetermined and will depend on pending pre-feasibility studies and other conditions. As of December 31, 2012 the group has made contributions of US$12.5 million.
(3) Relates to our contractual commitments, in connection with the construction and operation of our new cement plant in Piura.

 

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In addition, we have various mining fees and royalties payable to the government and third parties in connection with our concessions and surface land use.

 

G. Safe Harbor

See “Part I—Introduction—Forward-Looking Statements.”

ITEM 6. DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES

 

A. Directors and Senior Management

General

Our business and affairs are managed by the board of directors in accordance with our by-laws and Peruvian Corporate Law No. 26887 (“Peruvian Corporate Law”). Our by-laws provide for a board of directors of between seven and eleven members. Between three and five alternate directors may be elected by the shareholders to act on behalf of any director who is absent from meetings or who is unable to exercise his or her duties, when and for whatever period fixed by the chairman of the board. Alternate directors have the same responsibilities, duties and powers of directors to the extent they are called to replace them.

Directors are elected at a shareholders’ meeting and hold office for three years. Directors may be elected to multiple terms. Our current board of directors is composed of nine directors and three alternates. If a director resigns or otherwise becomes unable to continue with the duties, a majority of our directors may appoint one of the alternate directors to serve as director for the remaining term of the board. In the first board meeting held after the annual shareholders’ meeting where members of the board are elected, the board of directors must elect among its members a chairman and a vice chairman.

The board of directors typically meets in regularly scheduled bi-monthly meetings and when called by the chairman of the board or a person representing the chairman. Resolutions must be adopted by a majority of the directors present at the meeting and the chairman is entitled to cast the deciding vote in the event of a tie.

Duties and Liabilities of Directors

Pursuant to Article 177 of Peruvian Corporate Law, directors are jointly and severally liable to a corporation, shareholders and third parties for any damages caused by abuse of power, fraud, willful misconduct or gross negligence. In addition, pursuant to Article 3 of Law No. 29720, as of June 26, 2011, directors of companies listed on the Lima Stock Exchange are also strictly liable for any damages caused as a result of any transactions in which they were involved and which resulted in damages or other losses to the corporation. A director cannot be found liable if the director expressed disagreement at the time the vote was cast or upon learning of such transaction and if there is a record expressing such opposition.

Our by-laws prohibit a director from voting on matters in which such director has an interest. In addition, Article 180 of the Peruvian Corporate Law requires a director with a conflicting interest on a specific matter to disclose such interest and abstain from the deliberation and decision-making process with respect to such matter. A director who violates this requirement is liable for any damages caused to us and may be removed by a majority of the board of directors upon request of any member of the board or by a majority vote of the shareholders.

Our By-laws stipulate that Directors’ compensation will be determined by the Mandatory Annual General Shareholders’ Meeting at the time it reviews the Company’s annual financial statement. The fixed portion of the Chairman’s compensation shall be twice the amount allocated to any other director. If directors are part of one or more Committees, their compensation may include an additional amount for the work performed in such Committees. The additional compensation of the directors shall not exceed the aggregate fixed portion of the compensation that the directors are entitled to receive. also do not contain any provisions with respect to the power of the Directors to vote upon matters relating to their own compensation.

 

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Our By-laws contain no provision relating to the directors’ power to borrow from us. However, Article 179 of the Peruvian Corporate Law provides that directors of a company may enter into an agreement with such company only in the event that the agreement relates to operations the company performs in the regular course of business and in an arms-length transaction. Further, a company may provide a loan to a director or grant securities in his favor only in connection with operations that the company usually performs with third parties. Agreements, credits, loans or guarantees that do not meet the requirements set forth above require prior approval from at least two thirds of the members of the company’s Board of Directors. Directors are jointly liable to the company and the company’s creditors for contracts, credit, loans or securities executed or granted without complying with Article 179 of the Peruvian Corporate Law.

Neither our By-laws nor the Peruvian Corporate Law contain age limit requirements for the retirement or non-retirement of directors.

Board of Directors

The following sets forth our directors and alternate directors and their respective positions as of the date of this offering memorandum. All directors, with the exception of Ms. Ochoa-Brillembourg and Mr. Inchaustegui, were elected at our annual shareholders’ meeting held in March, 2011, and their term expires in March, 2014, the third anniversary from the date of election. Ms. Ochoa-Brillembourg and Mr. Inchaustegui were elected on November 28, 2011 and their term expires in March, 2014.

 

Name

  

Position

   Year of
Birth
 

Eduardo Hochschild Beeck

   Chairman of the Board      1963   

Lino Abram Caballerino (1)(2)

   Vice Chairman of the Board      1946   

Humberto Nadal Del Carpio

   Director, Chief Executive Officer      1964   

Rolando Arellano Cueva

   Director      1952   

Gianfranco Castagnola Zúñiga

   Director      1959   

Roberto Dañino Zapata (3)

   Director      1951   

Hilda Ochoa-Brillembourg

   Director      1945   

José Raimundo Morales Dasso

   Director      1946   

Dionisio Romero Paoletti

   Director      1965   

Manuel Ferreyros Peña

   Alternate director, Chief Financial Officer      1966   

Robert Patrick Bredthauer

   Alternate director      1947   

Juan Inchaustegui Vargas

   Alternate director      1938   

 

(1) On February 28, 2013, Mr. Lino Abram Caballerino resigned as Vice-Chairman, Director, member of the Executive Committee and member of the Antitrust Best Practices Committee.
(2) On April 19, 2013, Mr. Moisés Naím was appointed as a member of the Board of Directors.
(3) On April 19, 2013, Mr. Roberto Dañino Zapata was appointed Vice-Chairman of the Board of Directors.

The following sets forth selected biographical information for each of the members of our board of directors. The business address of each of our current directors is Calle La Colonia 150, Urb. El Vivero, Surco, Lima, Peru.

Eduardo Hochschild Beeck. Mr. Hochschild has been director since April 1991 and currently Chairman of the Board. He is an engineer with a specialization in mechanics and physics with a bachelor degree from Tufts University, Boston, U.S.A. Mr. Hochschild is also Executive President of Hochschild Mining plc and Asociación Promotora TECSUP and Chairman of IPSA, vice chairman of Peruvian Silver Patronage ( Patronato de la Plata del Perú ), director of Banco de Crédito del Perú, El Pacífico Peruano-Suiza Compañía de Seguros y Reaseguros, Sociedad de Comercio Exterior del Perú-COMEX Perú, the National Society of Mining, Petroleum and Energy ( Sociedad Nacional de Minería, Petroléo y Energía ), a member of the Board of Trustees of the National University of Engineering. He is also an expert consultant for the Economic Counsel of the Episcopal Conference.

 

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Lino Alfredo Abram Caballerino. Mr. Abram has been a director since March 1989 and is currently the Vice Chairman of the Board. He is a Chemical Engineer graduated from Universidad Mayor de San Marcos and has a master degree in business administration from Escuela Superior de Administración de Negocios-ESAN. In addition, Mr. Abram serves as Director of IPSA, Salmueras and Cementos Selva S.A. He is member of the Executive Committee of ASOCEM. He has previously served as a director of other companies and institutions such as Corporación Financiera de Desarrollo S.A., Tintaya S.A., Minpeco S.A., Hierro Perú S.A., Sider Perú S.A. and the National Society of Mining, Petroleum and Energy ( Sociedad Nacional de Minería, Petroléo y Energía ). Mr. Abram has also been Finance and Planning Manager of Minero Peru S.A. and Executive President of Inversiones Cofide S.A. Mr. Abram was Chief Executive Officer of the Company until April 2011.

Humberto Reynaldo Nadal Del Carpio. Mr. Nadal joined our company as Corporate Development Manager in June 2007 and has served as our director since March 2008 and Chief Executive Officer since April 2011. He has a bachelor degree in economics from Universidad del Pacífico and a Masters degree in Business Administration from Georgetown University. He is the representative of Cementos Pacasmayo in the General Management of IPSA, Fosfatos and Salmueras. He has also been Chairman of the Board of Directors of Fondo MiVivienda. In April 2006, he joined Compañía Minera Ares S.A.C. (a subsidiary of Hochschild Mining plc) as Corporate Development Manager, a position he held until May 2007. Mr. Nadal has also served as Business, Administration and Finance Manager of Instituto Libertad y Democracia and Chief Executive Officer of Socosani S.A.

Rolando Antonio Arellano Cueva . Mr. Arellano has been a director since March 2011. He holds a degree in psychology from Pontificia Universidad Católica del Perú, a Masters in Business Administration from ESAN and a Ph.D. in Marketing from Grenoble University, France. In addition, he is the founding partner and serves as Chairman of the Board of Arellano Investigación de Marketing S.A., is professor at Centrum Catolica (Universidad Catolica del Peru Business School) and has taught at the Instituto Tecnológico de Monterrey in México, IESA in Caracas, among other universities. He was Director of the Master Program at ESAN, and Chairman of the Marketing Department and Director of the Master in International Business Program at Laval University, Quebec, Canada. He was the Chairman of the Peruvian Marketing Society and is the author of 16 books on business and marketing in emerging economies.

Gianfranco Castagnola Zúñiga. Mr. Castagnola has been a director since March 2003. He has a degree in economics from Universidad del Pacífico and a Master in Public Policy from Harvard University. Mr. Castagnola also serves as Executive President of Apoyo Consultoría S.A.C., Chairman of the Board of AC Capitales Sociedad Administradora de Fondos de Inversión S.A., and Director of Scotiabank Perú S.A.A., Saga Falabella S.A., Austral Group S.A.A., Lima Airport Partners S.R.L., Camposol S.A., Maple Gas Corporation del Perú S.A., Redesur S.A., Inmobiliaria Koricancha S.A. and other non-for-profit organizations. He served as a member of the board of the Central Bank of Peru from to 1996 to 2001.

Roberto Dañino Zapata. Mr. Dañino has been a director since 1995. In July 2001, he resigned from our Board of Directors to take office as Prime Minister of the Peruvian Government, before rejoining the Board in June 2008. He holds law degrees from Pontificia Universidad Católica del Perú and Harvard Law School. He has also served as ambassador to the United States of America and Senior Vice-President and General Counsel of the World Bank. In addition, he was a partner and Chairman of the Latin American Practice at Wilmer Cutler & Pickering, Washington D.C. (now Wilmer Hale). He is currently Vice Chairman of the Board of Hochschild Mining plc and Chairman of Fosfatos del Pacifico S.A. and a member of the Board of Directos of Salmueras Sudamericanas S.A, and Andino Minerals Inc., all of which are member companies of the Grupo Hochschild. In Addition, he is Independent Director of Mibanco, PetroNova, Gold Fields International, La Cima S.A., CARE Perú, Results for Development, the Youth Orchestra of the Americas and ACCION International, among others.

Hilda Ochoa-Brillembourg. Ms. Ochoa-Brillembourg was appointed as a director in October 2011. She has a Bachelor of Science degree in Economics from the Universidad Católica Andres Bello of Venezuela Master’s degree in Public Administration from Harvard’s Kennedy School of Government and a PhD in Business Administration from Harvard Business School. She is the founder, and since 1987, the President and Chief Executive Officer, of Strategic Investment Group and a group of affiliated investment management firms. From 1976 to 1987, she was Chief Investment Officer of the Pension Investment Division at the World Bank. Ms. Ochoa-Brillembourg is on the Board of Directors of General Mills, where she is also a member of the audit and public responsibility committees, McGraw-Hill, where she is also a member of its audit and financial policy committees, and the Atlantic Council of the United States. She is a lifetime member of the Council on Foreign Relations.

 

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José Raimundo Morales Dasso. Mr. Morales has been a director since March 2008. He has a Bachelor’s degree in Economics and Business Administration from Universidad del Pacífico and a Master’s in Business Administration from the Wharton Business School – University of Pennsylvania. Mr. Morales was the Chief Executive Officer of Banco de Crédito del Perú from November 1990 through March 2008. Currently, he is Chairman of the Board of Salmueras Sudamericanas S.A., Vice Chairman of the Board of Credicorp Ltd., Banco de Crédito del Perú, Banco de Crédito de Bolivia, Atlantic Security Bank and El Pacífico Peruano-Suiza Compañía de Seguros y Reaseguros and a member of the Board of Directors of Pacífico Vida Seguros, Alicorp S.A.A., Grupo Romero, Ceramica Lima S.A., Trebol Corporacion Ceramica S.A. and JJC Contratistas Generales.

Dionisio Romero Paoletti. Mr. Romero has been a Director since March 2005. He has a degree in Economics from Brown University and a Master´s degree in Business Administration from Stanford University. He is the Chairman of the Board of Directors of Credicorp and Banco de Crédito del Perú, and the Chief Executive Officer of Credicorp since 2009. Mr. Romero has served as a board member of Banco de Crédito del Perú since 2003 and was appointed Vice Chairman in 2008. He is also the Chairman of the Board of Pacifico Peruano Suiza Cia. De Seguros y Reaseguros, Pacifico Vida Cia. De Seguros y Reaseguros and of the Grupo Romero’s companies such as: Alicorp S.A.A., Compañia Universal Textil S.A., Ransa Comercial S.A., Industrias del Espino S.A., Palmas del Espino S.A. and Agricola del Chira, among others. Furthermore, he has been Vice Chairman of the Board of Inversiones Centenario and Director of Hermes Transportes Blindados and Banco de Crédito e Inversiones – BCI.

Manuel Ferreyros Peña. Mr. Ferreyros has been an alternate director since March 2008 and our Chief Financial Officer since January 2008. He is an alternate member of the Board of Directors of Fosfatos del Pacífico S.A. Mr. Ferreyros has a Bachelor´s degree in Business Administration from Universidad de Lima, a Multinational MBA at the Adolfo Ibañez School of Management, Miami and a Master’s in Business Administration from The College of Insurance in New York. Mr. Ferreyros has pursued the Advanced Management Program at Instituto Centroamericano de Administración de Empresas—INCAE and the CEO Management Program at Kellogg University, among others. Prior to joining Cementos Pacasmayo, Mr. Ferreyros was Chief Executive Officer of La Positiva Seguros y Reaseguros.

Robert Patrick Bredthauer. Mr. Bredthauer has been an alternate director since March 2003. He has a degree in Business Administration from Hochschule St. Gallen and a commerce degree from the École Supérieure de Commerce, La Neuveville, and the École Supérieure de Commerce, Lausanne, both in Switzerland. Since 1976, he acted as Vice-President of Finance and Executive Vice-President of Cemento Nacional C.A. (Guayaquil, Ecuador) and prior to that was the regional controller for Holderbank Management and Consulting in Nyon, Switzerland.

Juan Victoriano Inchaustegui Vargas. Mr. Inchaustegui has been a director since August 1995. He has a degree in Mechanical and Electric Engineering from Universidad Nacional de Ingeniería and he has attended the Advanced Management Program at the Universidad de Piura. Mr. Inchaustegui was the Peruvian Minister of Energy and Mines from March 1984 to July 1985, the Minister of Industry, Tourism, Integration and Trade Negotiations from February to July 2001, and he also served as a Senator of the Republic of Peru from 1990 to 1992. He was the Chief Executive Officer of Electroperú S.A. In addition, he served as President of Asociación Promotora TECSUP and as President of the Academy of Engineering, of which he is still a member.

 

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Executive Officers

Our executive officers oversee our business and are responsible for the execution of the decisions of the board of directors. The following table presents information concerning the current officers of the company and their respective positions:

 

Name

  

Position

   Year of
Birth
     Year of
Appointment
 

Humberto Nadal Del Carpio

   Chief Executive Officer      1964         2011   

Carlos Pomarino Pezzia

   Vice President, Cement Business      1962         2009   

Manuel Ferreyros Peña

   Chief Financial Officer      1966         2008   

Jorge Javier Durand Planas

   General Counsel      1966         2008   

Juan Manuel Yamamoto Shishido

   Controller      1966         2006   

Juan Guillermo Teevin Vasquez

   Engineering and Projects Manager, Cement Business      1955         2005   

Rodolfo Ricardo Jordan Musso

   Industrial Development Manager, Cement Business      1952         2009   

José Luis Arevalo Vega

   Phosphate Project Manager      1955         2005   

Joaquin Larrea Gubbins

   Corporate Development Manager      1974         2011   

Carlos Paul Cateriano Alzamora

   Corporate Social Responsibility Manager      1957         2006   

Oscar Antonio Vela Damonte

   Operations Manager Piura, Cement Plant      1959         2012   

Hugo Villanueva Castillo

   Operations Manager, Pacasmayo and Rioja Cement Plant      1962         2012   

 

* In March 7, 2013, Mr. Nestor Hernán Astete Angulo was appointed Human Resources Manager by the Executive Committee.

The following sets forth selected biographical information for each of our executive officers:

Humberto Reynaldo Nadal Del Carpio. See “Item.5 Directors, Senior Management and Employees—A. Directors and Senior Management—Board of Directors.”

Carlos Julio Pomarino Pezzia . Mr. Pomarino is our Vice President Cement Business since April 2009. He has a degree in economic engineering from Universidad Nacional de Ingeniería and a master in business administration from Adolfo Ibañez School of Management and ESAN and pursued the Advanced Management Program at the Universidad de Piura. He served as Commercial Officer of the Company from 2002 to 2009 and as Chief Executive Officer of Distribuidora Norte Pacasmayo S.R.L. from 1998 to 2009. Prior to joining the Company, Mr. Pomarino worked as manager of administration and finance at Comercializadora de Alimentos S.A. and as chief financial officer at Fábrica de Tejidos San Jacinto S.A.

Manuel Ferreyros Peña. See “Item.5 Directors, Senior Management and Employees—A. Directors and Senior Management—Board of Directors.”

Jorge Javier Durand Planas . Mr. Durand has been our General Counsel since September 2008. Previously, he was Legal Vice President and General Counsel of Hochschild Mining plc. He holds a Law degree from Universidad de Lima (Peru), and a Master in Business Administration from the Universidad del Pacífico (Peru). Among other studies, he has also completed the Management Program for Lawyers at the Yale School of Management. He joined the Hochschild Group in 1994. Mr. Durand currently also acts as a board member of Salmueras.

Rodolfo Ricardo Jordan Musso . Mr. Jordan has been our Industrial Development Manager since June 2012. He has a degree in civil engineering from Universidad Católica del Perú and pursued an Advanced Management Program at the Universidad de Piura. Prior to joining the Company he served as chief executive officer of the Mexican affiliate of Graña & Montero Ingenieros Consultores. From 2007 through 2009 he served as Marketing Manager of Distribuidora Norte Pacasmayo S.R.L, and from 2009 to 2012 he was Sales Manager for Cementos Pacasmayo

Juan Manuel Yamamoto Shishido . Mr. Yamamoto has been our Controller since 2006. He has a degree in public accounting from the Pontificia Universidad Católica del Perú and a master degree in business administration from Universidad San Ignacio de Loyola. Prior to joining the Company he served as chief financial officer of EDELNOR S.A.A. from 2002 to 2005, and from 2005 to 2006 as a deputy officer of treasury and accounting of EDEGEL S.A.A.

Juan Guillermo Teevin Vasquez . Mr. Teevin has been our Engineering and Projects Manager Cement Business since June 2012. He has a degree in mechanical engineering from Universidad Nacional de Ingeniería and has pursued different studies in the Advanced Management Program at the Universidad de Piura, as well as Multinational MBA at the Adolfo Ibañez School of Management.

 

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José Luis Arévalo Vega. Mr. Arévalo has been working for the company since 1976 and is currently serving as New Projects Manager. He has a degree in Electrical Engineering from the Universidad Nacional de Ingeniería, a degree from the Advanced Management Program at the Universidad de Piura and has also attended the Project Financial Management Program at UPC. Mr. Arévalo has served as Operating Officer of the company from 1998 to 2005, as Operations Vice-President of Zemex Corp. from 2005 to 2007 and as Project Manager of Hochschild Mining in Mexico from 2007 to 2008.

Joaquin Larrea Gubbins . Mr. Larrea has been our Corporate Development Manager since June 2011. He has a degree in Business Administration from Universidad de Lima and a master in business administration from the Kellogg School of Management. In the past, Mr. Larrea worked as Corporate Development Director of General Electric for Peru, Ecuador and Bolivia. He has served as our Zinc Business Manager for one year and as our Corporate Finance Head for five years.

Carlos Paul Cateriano Alzamora . Mr. Cateriano has been our Corporate Social Responsibility Manager since June 2012. Previously, he was our Human Resources Manager from 2006 to 2012 He has a degree in mechanical engineering from the Pontificia Universidad Católica del Peru and has pursued different studies in the Advanced Management Program at the Universidad de Piura. Prior to joining our company, Mr. Cateriano worked as Human Resources Deputy Manager at Banco Wiese Sudameris S.A. (acquired by Scotiabank Perú S.A.A.) from 1999 to 2006. In addition, he has worked as the Head of Training at Banco Santander Perú S.A. from 1995 to 1999, and as a consultant at Polimeros y Adhesivos S.A. from 1995 to 1998. Mr. Cateriano also worked at Corporación Andina de Desarrollo from 1987 to 1994 and at Fábrica de Calzado Peruano from 1985 to 1987.

Oscar Antonio Vela Damonte.  Mr. Vela joined Cementos Pacasmayo in 1986 and has worked in several positions within the company. In 2012 he was appointed Operations Manager for the new cement plant that is being built in Piura. Mr. Vela obtained a major degree in Mechanical Engineering and a master in Direction and Management at the University of Piura.

Hugo Pedro Villanueva Castillo.  Mr. Villanueva has been our Operations Manager for the Pacasmayo and Rioja cement plant since 2012. From July 2005 to January 2012, he held that same position at Cementos Selva S.A. Furthermore, Mr. Villanueva has 15 years of working experience in different positions within the company. Mr. Villanueva received a master’s degree in business from EGADE and completed the program of High Management PAG INCAE at Costa Rica.

 

B. Compensation

In 2012, total compensation paid to members of our board of directors and executive officers amounted to S/.26,687,000 (S./ 31,918,000 in 2011). This compensation included payments made in connection with the workers’ profit sharing plan under Peruvian labor laws, which require us to distribute between 8% and 10% of our annual income, net of taxes, to all employees, including our executive officers. See “Item 4. Information on the Company—B. Business Overview—Regulatory Matters” for additional information on the profit sharing regulatory requirements.

In 2011 we decided to pay each of our directors a yearly compensation of US$200,000 (US$400,000 in the case of our Chairman). In addition, compensation paid to certain of our directors for serving on board committees will be, in aggregate per year, not higher than the total amount paid to our directors for serving on our board of directors. Director compensation must be approved by a majority of shareholders at our annual shareholders’ meeting.

Neither we nor any of our subsidiaries have entered into any agreement that provides for any benefit or compensation to any director or executive officer after expiration of his or her term.

Executive Compensation Plan

Our business operates in a competitive environment where highly trained professionals and executives are in demand. The recent growth in the Peruvian economy has created new opportunities resulting in additional

 

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competition for local talent. As a result, we have recently designed a compensation plan to retain our key executives and attract new executives with the skills and experience required to achieve our strategic objectives and create long-term value for our shareholders. We believe that executive compensation should reward individual performance and the achievement of our strategic objectives.

Our executive compensation plan has been designed to achieve the following primary objectives:

 

   

recruit, retain and incentivize highly talented and dedicated executives with the skills and experience required to manage and operate our business and create long-term value for our shareholders;

 

   

provide our executive officers with compensation opportunities that are fair, reasonable and competitive in the market;

 

   

compensate based on our performance and individual performance;

 

   

promote transparency by using clear and straightforward compensation metrics; and

 

   

align the interests of our executive officers with the interests of our shareholders, both in the short-term and long-term.

Our executive compensation plan is in addition to workers’ profit sharing requirements applicable to all of our employees, including our executive officers, under Peruvian labor laws.

Our compensation plan has been designed to compensate our executives with a base salary, a cash bonus incentive and other benefits that we believe are fair and equitable to us and our shareholders and competitive in the market. We believe that the combination of salary, cash bonus incentive and other benefits will distinguish us from other companies in the cement industry in Peru, and serve as an important retention tool as we compete for executive talent. We also believe that it will provide an appropriate compensation structure to retain our executives, reward them for individual performance, and induce them to contribute to the creation of long-term value.

Components of Executive Compensation

The key components of our executive compensation plan are:

 

   

base salary;

 

   

short-term cash bonus incentives (convenio de participación voluntaria en utilidades); and

 

   

long-term cash bonus incentives.

We believe that the use of few and straightforward compensation components promotes the effectiveness and transparency of our executive compensation plan and enables us to be competitive. No formula or specific weightings or relationships are used to allocate the various components in our executive compensation plan. Each component has an important role in implementing our executive compensation philosophy and in meeting the executive compensation objectives described above.

Base Salary

We provide our executive officers and other employees with a base salary to compensate them for services rendered on a day-to-day basis during the fiscal year. Base salaries provide stable compensation to executives, allow us to recruit and retain highly talented and dedicated executives and, through periodic merit increases, provide a basis upon which executives may be rewarded for individual performance.

 

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Short-Term Cash Bonus Incentives (Convenio de Participación Voluntaria en Utilidades)

As a key component of our compensation plan, we currently provide our executive officers the opportunity to earn annual cash bonuses based on the achievement of our short-term business objectives. As additional cash compensation that is contingent on achieving our business objectives, cash incentives augment the base salary component while being tied directly to corporate and individual performance objectives.

Long-Term Cash Bonus Incentives

In addition, as a tool to promote retention of our executive officers, we have implemented a deferred cash incentive program that we believe aligns compensation with corporate performance, allows us to recruit and retain competent executive talent, and rewards for superior performance measured over the long-term. Our plan provides for the payment of bonuses in addition to the annual bonuses that are paid to our executive officers.

Our long-term bonus incentive program features the following key components:

 

   

available to senior executives who have been employed by our company for at least four years;

 

   

at the end of each year, the cash bonus will be accrued in a “personal virtual account” for the benefit of the relevant executive;

 

   

on the fifth anniversary of the creation of the bonus plan, the relevant executive will receive the amount accrued during the first four years;

 

   

additional annual bonuses will be accrued for the following four years and a final payout will be made at the end of the eighth year from the creation of the plan; and

 

   

if the employee decides to voluntarily leave the company before a scheduled distribution, he will not receive this compensation.

Our plan provides that the executive must meet the following eligibility criteria:

 

   

must be no older than 58 years at the time his or her participation in the incentive program begins;

 

   

must have at least four years of employment with either our company, or our subsidiaries or affiliates;

 

   

is a professional who is deemed to have characteristics that are attractive to the market; and

 

   

the executive’s departure is deemed by the board of directors or a committee thereof to have an adverse effect on our performance.

 

C. Board Practices

For information about the date of expiration of the current term of office and the period during which each director has served in such office, see “Item 6. Directors, Senior Management and Employees—A. Directors and Senior Management.”

Benefits upon Termination of Employment

There are no contracts providing for benefits to Directors upon termination of employment

Board Committees

We have three board committees comprised of members of our board of directors.

 

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Executive Committee

Our by-laws permit us to delegate an executive committee composed of three to five members of the board of directors. Mr. Eduardo Hochschild, Mr. Roberto Dañino, Mr. Raimundo Morales, Mr. Lino Abram 1 and Mr. Humberto Nadal are currently members of our Executive Committee. Our Executive Committee is mainly responsible for (i) supervising and supporting our management in executing the resolutions passed by our board of directors, (ii) executing the strategy approved by our board of directors, (iii) meeting short-term and medium-term goals, as well as designing action plans to meet such goals in accordance with the long-term strategy and goals approved by our board of directors, (iv) approving agreements or transactions involving amounts greater than US$3 million but less than US$20 million, (v) monitoring compliance with the annual budget and approving any significant deviations from approved levels of working capital, (vi) making strategic decisions that do not rise to the level of a full board approval, and (vii) approving and executing new projects in amounts up to US$20 million.

Our Executive Committee also performs the functions of a nominating, corporate governance and compensation committee.

Antitrust Best Practices Committee

The antitrust best practices committee is composed of three members: Mr. Humberto Nadal, Mr. Lino Abram 1 and Mr. Rolando Arellano. The Antitrust Best Practices Committee is responsible for informing our employees about our competition best practices and for monitoring compliance with such practices, including compliance with antitrust regulations.

Audit Committee

Our audit committee is currently composed of three directors. The current members are Ms. Hilda Ochoa-Brillembourg, who is the Chairman of the audit committee, Mr. Raimundo Morales Dasso 2 and Mr. Gianfranco Castagnola Zúñiga. Ms. Hilda Ochoa-Brillembourg and Mr. Gianfranco Castagnola Zúñiga qualify as independent in accordance with the SEC rules applicable to foreign private issuers. Ms. Hilda Ochoa-Brillembourg also qualifies as a financial expert under the SEC rules. The audit committee is responsible for reviewing our financial statements; evaluating our internal controls and procedures, and identifying deficiencies; the appointment, compensation, retention and oversight of our external auditors; the resolution of any disagreements between management and our external auditors; informing our board of directors regarding any issues that arise with respect to the quality or integrity of our financial statements, our compliance with legal or regulatory requirements, the performance and independence of the external auditors, or the performance of the internal audit function; and overseeing measures adopted as a result of any observations made by our shareholders, directors, executive officers, employees or any third parties with respect to accounting, internal controls and internal and external audit, as well as any complaints regarding management irregularities, including anonymous and confidential methods for addressing concerns raised by employees.

 

D. Employees

As of December 31, 2012 we had a total of 1,734 permanent employees. The following table sets forth a breakdown of our employees by category as of the periods indicated.

 

     As of December 31,  
     2010      2011      2012  

Management

     15         17         29   

Administrative personnel

     780         910         1,050   

Plant workers

     606         595         655   
  

 

 

    

 

 

    

 

 

 

Total

     1,401         1,522         1,734   
  

 

 

    

 

 

    

 

 

 

 

1   On February 28, 2013, Mr. Lino Abram Caballerino resigned as member of the Executive Committee and the Antitrust Best Practices Committee.
2   As of February 8th, 2013, Mr. Raimundo Morales is no longer a member of the Audit Committee.

 

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As of December 31, 2012, approximately 20% of our employees were members of the labor unions ( Sindicato Único de Trabajadores de Cantera de la Fábrica de Cementos Pacasmayo S.A.A—UEA Tembladera and Sindicato Único de Trabajadores de Cementos Pacasmayo S.A.A .) that represents its members in collective bargaining negotiations. Our management and administrative personnel are not members of a labor union. Labor relations for unionized and non-unionized employees in our production facilities, including compensation and benefits, are governed by a collective bargaining agreement that is renewed annually. We completed the 2012 collective bargaining negotiations in May 2012.

Under Peruvian law, it is illegal to lay off employees without cause or without following certain formal procedures. In addition, employees who are laid off are entitled to severance payments upon termination of their employment in an amount equal to one and a half month’s salary for each full year of work performed with a maximum payment equal to 12 monthly salaries provided they are indefinite term employees. In case of fixed term employment relationship the severance payment is equal to 1.5 monthly salaries for each month, until the completion of the contract, with a maximum of 12 monthly salaries.

Our employees are enrolled in either the national public pension fund or a privately managed pension fund. In both cases the applicable payment (approximately 13%) is withheld by the employer from the employees’ monthly salary. As of December 31, 2012, approximately 14% of our employees were enrolled with the national public pension fund and 86% with a private social pension plan.

We believe we have a good relationship with our employees. In the past, we have not experienced any material strikes, work stoppages or any other significant disruptions.

 

E. Share Ownership

As of March 31, 2012, persons who are currently members of our board of directors and our executive officers held as a group 1,235,458 of our common shares and no investment shares (not including common and investment shares held by Mr. Eduardo Hochschild through IPSA). This amount represented less than one percent of our outstanding share capital as of March 31, 2012. Mr. Eduardo Hochschild through IPSA indirectly controls 279,689,617 common shares and 16,753,544 investment shares.

Mr. Eduardo Hochschild, Mr. Dionisio Romero, Mr. Humberto Nadal, Mr. Raimundo Morales, Mr. Carlos Pomarino and Mr.  Oscar Vela own individually and in the aggregate less than 1% of our common shares.

ITEM 7. MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS

 

A. Major Shareholders

As of March 31, 2013, our issued and outstanding share capital was composed of 531,461,479 common shares. In addition, as of March 31, 2013, we had 50,503,124 investment shares outstanding.

The following table sets forth the beneficial ownership of our common shares and non-voting investment shares as of March 31, 2013.

 

     Common shares     Investment shares     Total  

Shareholder

   Number of
shares
     Percentage     Number of
shares
     Percentage     Number of
shares
     Percentage  

IPSA(1)

     279,689,617         52.63     16,753,544         33.17     296,443,161         50.94

IN—Fondo 2 (AFP Integra)

     —           —          4,320,116         8.55     4,320,116         0.74

RI—Fondo 2 (AFP Prima)

     21,426,408         4.03     4,029,701         7.98     25,456,109         4.37

RI—Fondo 3 (AFP Prima)

     23,072,818         4.34     3,904,644         7.73     26,977,462         4.64

HO-Fondo 3 (AFP Horizonte)

     —           —          3,760,845         7.45     3,760,845         0.65

HO-Fondo 2 (AFP Horizonte)

     —           —          3,464,635         6.86     3,464,635         0.60

PR—Fondo 2 (AFP Profuturo)

     —           —          3,213,358         6.36     3,213,358         0.55

IN—Fondo 3 (AFP Integra)

     —           —          2,659,031         5.27     2,659,031         0.46

Directors and officers(2)

     1,235,458         0.23     —           —          1,235,458         0.21

ADR Program

     105,489,305         19.85     —           —          105,489,305         18.13

Other shareholders

     100,547,873         18.92     8,397,250         16.63     108,945,123         18.72
  

 

 

    

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

Total

     531,461,479         100     50,503,124         100     581,964,603         100
  

 

 

    

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

 

(1) IPSA is indirectly controlled by Mr. Eduardo Hochschild through Farragut Holdings, Inc. (Cayman Islands). Mr. Eduardo Hochschild is a member of the board of directors of our company.
(2) See “Item 6. Directors, Senior Management and Employees—Share Ownership” for information regarding shares of our common stock owned by members of our board of directors and executive officers. The number of common shares held by directors and executive officers excludes any shares that may be deemed to be beneficially owned by Mr. Eduardo Hochschild through IPSA

 

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Changes in Ownership

The following sets forth the composition of ownership from December 31, 2008 to December 31, 2012.

 

Shareholder

   2008     2009     2010     2011     2012  

IPSA

     63.92     63.92     63.92     63.92     50.94

IN—Fondo 2 (AFP Integra)

     0.92     0.92     0.92     0.92     0.74

RI—Fondo 2 (AFP Prima)

     4.30     5.76     5.51     5.43     4.37

RI—Fondo 3 (AFP Prima)

     4.45     5.78     5.80     5.99     4.54

HO-Fondo 3 (AFP Horizonte)

     —          —          —          0.69     0.65

HO-Fondo 2 (AFP Horizonte)

     —          —          —          —          0.56

IN—Fondo 3 (AFP Integra)

     0.57     0.57     0.57     0.57     0.46

PR—Fondo 2 (AFP Profuturo)

     0.58     0.54     0.54     0.54     0.55

ADR Program

     —          —          —          —          17.83

Other shareholders

     25.26     22.51     22.74     21.94     19.36
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

     100.0     100.0     100.0     100.0     100.00
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

In February 2012, we issued 100,000,000 common shares, or 18.82% of the outstanding common shares, in the form of ADSs listed on the New York Stock Exchange. In March 2012, we issued an additional 11,484,000 common shares, or 2.16% of the outstanding common shares,in the form of ADSs listed on the New York Stock Exchange, when the underwriters exercise their over-allotment option.

In March 30 2012, we issued 927,783 investment shares, or 1.84% of the outstanding investment shares, pursuant to a preemptive right offer in connection with our issuance of ADSs.

Differences in Voting Rights

Our major shareholders do not have different voting rights.

Securities held in the host country

On February 7, 2012, we completed our initial equity offering of 20,000,000 ADSs, each representing five common shares, in the United States. On March 2, 2012, we sold an additional 2,296,800 ADSs pursuant to an over-allotment option granted to the underwriters in that offering. As a result, our ADSs are listed on the New York Stock Exchange. As of March 31, 2013, we estimate that there are 21,097,861 ADSs, which represented 19.85% of our common shares outstanding. We estimate that as of March 31, 2013, the number of record holders of our common shares (or ADSs representing our common shares) that file form 13-F in the United States was 32.

Arrangements for change in control

We are not aware of any arrangements that may, when in force, result in a change in control.

 

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B. Related Party Transactions

Peruvian Law Concerning Related Party Transactions

Under Peruvian law, board members and executive officers of a publicly-held company may not (i) engage in transactions with the company or any related party of the company, except for transactions entered into in the ordinary course of business and on an arm’s length basis, (ii) appropriate for their own benefit a business opportunity that belongs to the company, or (iii) participate in any transaction or decision that presents a conflict of interest with the company.

Related Party Transactions

As a general policy, we do not enter into transactions with related parties, including our board members and officers, on terms more favorable than what we would offer third parties. Any related party transaction we have entered into in the past has been in the ordinary course of business and on an arm’s length basis.

In 2012, we had an accounts receivable balance with IPSA, our controlling shareholder, in the amount of S/.70,000. The accounts receivable balance relates to fees owed by our controlling shareholder for legal and corporate services we provide to it.

The following transactions have been entered into by us with related parties:

 

   

We lease a plot of land adjacent to our headquarters to our affiliate, Compañía Minera Ares S.A.C., a subsidiary of Hochschild Mining plc. We received rental payments of S/.291,000 in 2010, S/.284,000 in 2011; and S/.273,000 in 2012.

 

   

We lease part of our headquarters as office space to IPSA. We received rental payments of S/.150,000 in 2010, S/.158,000 in 2011; and S/.176,000 in 2012.

 

   

We provide back office management and administrative services to IPSA, for which we received S/.360,000 in 2010 ,S/.376,000 in 2011; and S/.376,000 in 2012.

 

   

In February 2011, the Company provided a loan to Inversiones Pacasmayo S.A. for a total amount of S/.6,965,000 with annual interest rate of 6.0%, for which we received interest payments of S/.7,000 in 2011. This loan was collected in February and March 2011.

 

   

In March 2010 the Company provided a loan to Inversiones Pacasmayo S.A. for a total amount of S/.28,553,000 with annual interest rate of 6.0%. This loan was repaid in December 2010. The income interest generated from this loan amounted to S/.421,000.

 

   

In July 2012 the Company provided a loan to Servicios Corporativos Pacasmayo S.A.C. for a total amount of S/.240,000 accruing interest at an annual rate of 6%, for which we received interest payments of S/.7,000 in 2012. This loan was collected in October 2012.

IPSA and Hochschild Mining plc are majority-owned and controlled, directly and indirectly, by Mr. Eduardo Hochschild.

For more information about our related-party transactions please see note 25 to our annual consolidated financial statements included elsewhere in this annual report.

 

C. Interests of Experts and Counsel

Not applicable.

 

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ITEM 8. FINANCIAL INFORMATION

 

A. Consolidated Statements and Other Financial Information.

See Exhibits.

Legal and Administrative Proceedings

From time to time, we may become subject to various legal and administrative proceedings that are incidental to the ordinary conduct of our business. We are currently not party to any material legal or administrative proceedings.

Dividends and Dividend Policy

Our ability to pay dividends is subject to our results of operations for each year. Holders of our common shares and investment shares are entitled to receive dividends on a pro rata basis in accordance with their respective number of shares held.

Under our dividend policy, shareholders must take the following factors into consideration prior to declaring dividends: our financial and economic condition, including committed and budgeted expenses and obligations, and previously approved investments. In addition, our dividend policy states that (a) our board of directors may declare advanced dividends based on either the net income resulting from financial statements prepared for such purpose or the cumulative net income corresponding to previous years, provided that shareholders delegated such authority to the board of directors, and (b) holders of common shares representing no less than 20% of our total share capital may request the distribution of dividends up to 50% of the net income corresponding to the previous year, net of any legal reserve requirements. Our board of directors, makes a recommendation at the annual shareholders’ meeting with respect to the amount and timing of dividend payments, if any, to be made on our common shares and investment shares.

Payment of Dividends

Dividends are paid to holders of our common shares and investment shares, as of a record date determined by us. In order to allow for the settlement of securities, under the rules of the Peruvian Securities Commission, investors who purchase shares of a publicly-held company three business days prior to a dividend payment date do not have the right to receive such dividend payment. Dividends on issued and outstanding common shares and investment shares are distributed pro rata.

Holders of common shares and investment shares are not entitled to interest on accrued dividends. In addition, under Article 232 of the Peruvian Corporate Law, the right to collect accrued dividends declared by a publicly-held company expires 10 years from the original dividend payment date.

Previous Dividend Payments

The following table sets forth the amounts of cash dividends declared and paid from 2008 through the date hereof for our common shares and our investment shares.

 

Year ended December 31,

   Dividends paid      Per share  
            (in S/.)  

2008(1)

     232,887,000         0.49597   

2009

     25,000,000         0.05324   

2010(2)

     73,000,000         0.15547   

2011

     91,000,000         0.19380   

2012

     52,000,000         0.08935   

 

(1) Represents an extraordinary dividend payment following the sale of the Zemex businesses in the United States and Canada.
(2) In March 2010, we sold our Raul copper mine concessions. In April 2010, we declared an extraordinary dividend payment.

 

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In the annual shareholders’ meeting held on March 26, 2013, the shareholders unanimously approved the financial statements for fiscal year 2012 including the net income for such year and delegated to the Board of Directors the authority to decide the distribution of dividends on account of fiscal year 2013 earnings.

 

B. Significant Changes

We are not aware of any changes bearing upon our financial condition since the date of the financial statements included in this annual report.

ITEM 9. THE OFFER AND LISTING

 

A. Offer and Listing Details

Market Price of Our Common Shares and ADSs

Our ADSs

On February 7, 2012, we completed our initial equity offering of 20,000,000 ADSs, each representing five common shares, in the United States. On March 2, 2012, we sold an additional 2,296,800 ADSs pursuant to an over-allotment option granted to the underwriters in that offering. As a result, our ADSs are listed on the New York Stock Exchange.

Our ADSs are listed on the New York Stock Exchange under the symbol “CPAC”. On April 25, 2013, the closing price on New York Stock Exchange was 14.17 per ADS.

The following table sets forth for each of the most recent two months and for the current month the high and low closing prices in U.S. dollars of our ADSs on the New York Stock Exchange as reported by the New York Stock Exchange.

 

     ADSs  

(inUS$.)

   High      Low  

2012:

     

February (beginning February 8th)

     11.93         9.82   

March

     11.76         10.87   

April

     12.77         11.59   

May

     12.54         10.66   

June

     11.45         9.95   

July

     10.72         9.30   

August

     9.57         9.10   

September

     11.54         9.26   

October

     11.85         10.87   

November

     12.94         11.57   

December

     14.26         11.91   

2013:

     

January

     14.93         13.01   

February

     14.54         12.77   

March

     15.42         13.47   

April (through April 25, 2013)

     15.31         13.72   

 

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Our Shares

Our common shares and our investment shares are registered in the Public Registry of Securities held with the Peruvian Securities Commission and are listed on the Lima Stock Exchange under the symbols “CPACASC1” and “CPACASCI1”, respectively. On April 25, 2013, the closing price on the Lima Stock Exchange was S/.7.30 per common share and S/.6.35 per investment share. Historically, trading volumes of our common shares and investment shares on the Lima Stock Exchange have been limited.

The following table sets forth for the five most recent full years the high and low closing prices in nuevos soles of our common shares and investment shares on the Lima Stock Exchange as reported by the Lima Stock Exchange.

 

     Common
shares
     Investment
shares
 

(in S/.)

   High      Low      High      Low  

2007

     8.00         3.96         7.30         4.20   

2008

     5.55         1.36         4.40         1.65   

2009

     3.60         1.77         3.20         1.60   

2010

     7.92         3.08         7.21         3.00   

2011

     8.45         4.25         7.48         4.05   

2012

     6.90         4.75         6.00         4.45   

The following table sets forth for each quarter of the three most recent financial years the high and low closing prices in nuevos soles of our common shares and investment shares and the Lima Stock Exchange as reported by the Lima Stock Exchange.

 

     Common
Shares
     Investment
Shares
 

(in S/.)

   High      Low      High      Low  

2010:

           

First quarter

     3.75         3.08         3.54         3.00   

Second quarter

     5.23         3.75         4.80         3.60   

Third quarter

     6.15         4.25         5.10         4.05   

Fourth quarter

     7.92         6.16         7.21         5.25   

2011:

           

First quarter

     8.45         6.15         7.48         6.50   

Second quarter

     7.12         5.45         6.80         5.25   

Third quarter

     6.20         4.75         6.01         4.85   

Fourth quarter

     5.80         4.25         4.70         4.05   

2012:

           

First quarter

     6.90         5.65         6.00         4.45   

Second quarter

     6.80         5.45         5.90         5.80   

Third quarter

     5.95         4.75         5.00         4.99   

Fourth quarter

     6.85         5.80         5.95         4.50   

The following table sets forth for each of the most recent six months and for the current month the high and low closing prices in nuevos soles of our common shares and investment shares on the Lima Stock Exchange as reported by the Lima Stock Exchange.

 

     Common
Shares
     Investment
Shares
 

(in S/.)

   High      Low      High      Low  

2012:

           

October

     6.02         5.80         5.00         4.50   

November

     6.51         5.97         5.85         4.80   

December

     6.85         6.38         5.95         5.92   

2013:

           

January

     7.25         6.70         6.30         6.15   

February

     7.20         6.80         

March

     7.65         7.00         6.25         6.10   

April (through April 25, 2013)

     7.55         7.26         6.35         6.25   

 

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B. Plan of Distribution

Not applicable.

 

C. Markets

Trading in the Peruvian securities market

The Lima Stock Exchange

As of December 31, 2012, there were 282 companies listed on the Lima Stock Exchange. Established in 1970, the Lima Stock Exchange is Peru’s only securities exchange. On November 19, 2003, the members of the Lima Stock Exchange approved to convert its corporate status to a publicly held corporation as of January 1, 2003. As of December 31, 2012, The Lima Stock Exchange had a share capital of S/.59,715,840, divided into 56,405,407 class “A” shares and 3,310,433 class “B” shares of par value S/.1.00 each. Class “A” shares are entitled to one vote per share while class “B” shares do not have voting rights. As of December 31, 2012, the Lima Stock Exchange had 131 class “A” shareholders and 72 class “B” shareholders.

Trading on the Lima Stock Exchange is primarily done on an electronic trading system that became operational in August 1995. From the first Monday of November through the second Sunday of March of each year, trading hours are Monday through Friday (except holidays) as follows: 8:20 a.m.-8:30 a.m. (pre-market ordering); 8:30 a.m.-2:55 p.m. (trading); 2:55 p.m.-3:00 p.m. (after-market sales); and 3:00 p.m.-3:10 p.m. (after-market trading). At all other times, trading hours are from Monday to Friday (except holidays) as follows: 9:00 a.m.-9:30 a.m. (pre-market ordering); 9:30 a.m.-3:55 p.m. (trading); 3:55 p.m.-4:00 p.m. (after-market sales); and 4:00 p.m.-4:10 p.m. (after-market trading).

Substantially all of the transactions on the Lima Stock Exchange are traded on the electronic system. Transactions during the electronic sessions are executed through brokerage firms and stock brokers on behalf of their clients. Brokers submit orders in the order in which they are received. The orders must specify the type of security as well as the amount and price of the proposed sale or purchase. In order to control price volatility, the Lima Stock Exchange imposes a 15 minute suspension on trading when the price of a security varies on a single day by more than 15% for Peruvian companies and 30% for non-Peruvian companies.

Regulation of the Peruvian Securities Market

The Securities Market Law regulates certain securities matters, such as transparency and disclosure, corporate takeovers, capital market instruments and operations, the securities markets and broker-dealers, and credit-rating agencies. In 1996, the Peruvian Securities Commission, formerly known as the National Supervisory Commission for Securities and Companies ( Comisión Nacional Supervisora de Empresas y Valores, or “CONASEV”), was given additional responsibilities relating to the supervision, regulation and development of the securities market, while the Lima Stock Exchange was granted the status of a self-regulatory organization. Additionally, a unified system of guarantees and capital requirements was established for the Lima Stock Exchange.

Pursuant to Law N° 29,782, published in the Peruvian Official Gazette, El Peruano , on July 28, 2011, the Peruvian Securities Commission is a governmental entity reporting to Peru’s Ministry of Economy and Finance with functional, administrative, economic, technical and budgetary autonomy.

The Peruvian Securities Commission is governed by the Superintendent and a five board-members conformed by the Superintendent (who acts as President of the board) and four members appointed by the Peruvian Executive Power (one suggested by the Ministry of Economy and Finance, one suggested by the Peruvian Central Reserve Bank, one suggested by the Peruvian Superintendency of Banking, Insurance and Private Pension Funds and one independent member). The Peruvian Securities Commission has broad regulatory powers, including reviewing, promoting, and making rules regarding the securities market, supervising its participants, and approving the registration of public offerings of securities.

 

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The Peruvian Securities Commission supervises the securities markets and the dissemination of information to investors. It also (i) governs the operations of the Public Registry of Securities, (ii) regulates mutual funds, publicly placed investment funds and their respective management companies and broker- dealers, (iii) monitors compliance with accounting regulations by companies under its supervision as well as the accuracy of financial statements and (iv) registers and supervises auditors who provide accounting services to those companies registered with the Peruvian Securities Commission.

Pursuant to the Securities Market Law, broker-dealers must maintain a guarantee fund. This guarantee fund must be managed by an entity supervised by the Peruvian Securities Commission. Contributions to the guarantee fund must be made by the 26 broker-dealers that are members of the Lima Stock Exchange and are based on the volume traded over the exchange. As of December 31, 2010, the fund had approximately S/.35 million (approximately US$12.6 million). In addition to the guarantee fund managed, each broker-dealer is required to maintain a guarantee in favor of the Peruvian Securities Commission to guarantee any liability that broker-dealers may have with respect to their clients. Such guarantees are generally established through letters of credit issued by local banks.

Disclosure Obligations

Issuers of securities registered with the Peruvian Securities Commission are required to disclose material information relating to the issuer. Pursuant to the Securities Market Law and relevant regulations enacted thereunder, all material information in connection with the issuer of registered securities (such as our common shares and investment shares), its activities or securities issued or secured by such issuer which may influence the liquidity or price of such securities must be disclosed. Accordingly, issuers must file with the Peruvian Securities Commission mainly two types of information: (a) financial information, including interim unaudited financial statements on a quarterly basis (which are not required to be subject to limited review), and annual audited consolidated financial statements on an annual basis, and (b) material information relating to the issuer and its activities that may significantly affect the price, offering or negotiation of the issued securities, and in general, all the information that may be relevant for investors to be able to make investment decisions.

In order to comply with the foregoing disclosure obligations, issuers must disclose reaffirmation to the Peruvian Securities Commission and, if the securities are listed, with the Lima Stock Exchange as soon as practicable but not later than one business day after having become aware of such information.

 

D. Plan of Distribution

Not applicable.

 

E. Selling Shareholders

Not applicable.

 

F. Dilution

Not applicable.

 

G. Expenses of the Issue

Not applicable.

 

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ITEM 10. ADDITIONAL INFORMATION

 

A. Share Capital

Not applicable.

 

B. Memorandum and Articles of Association

Set forth below is certain information relating to our share capital, including brief summaries of the material provisions of our by-laws, Peruvian corporate law and certain related laws and regulations of Peru, all as in effect as of the date hereof.

General

We are a publicly-held corporation under Peruvian Corporate law and registered with the Public Registry of Corporations in Lima. We are currently listed on the Lima Stock Exchange.

Our by-laws provide that our principal corporate purpose is mining and the production and sale of cement, quicklime and other construction materials in Peru and internationally.

We have common shares and investment shares.

See “Item 6. Directors, Senior Management and Employees—A. Directors and Senior Management” for information regarding our Board of Directors.

Common Shares

Common shares represent 100% of our voting shares. As of March 31, 2013, we had 531,461,479 common shares outstanding. As of March 31, 2013, there were 7,420 owners of record of our common shares (considering the ADSs listed in the New York Stock Exchange are held by one owner). Our common shares have a par value of S/.1.00 per share and have been fully subscribed and are fully paid. Our common shares are registered in the Securities Public Registry of the Peruvian Securities Commission and are listed on the Lima Stock Exchange.

Investment Shares

As of March 31, 2013, we had 50,503,124 investment shares. Investment shares have no voting rights and are not, under Peruvian law and accounting regulations, characterized as share capital. However, investment shares are still considered part of the company’s equity. As of March 31, 2013, there were 458 owners of record of our investment shares. Our investment shares have a par value of S/.1.00 per share and have been fully subscribed and are fully paid. Our investment shares are registered in the Securities Public Registry of the Peruvian Securities Commission and are listed on the Lima Stock Exchange.

Shareholders’ Liability

Under Peruvian Corporate Law, holders of our common shares cannot vote on matters with respect to which they have a conflict of interest.

Under Article 133 of the Peruvian Corporate Law, a shareholder must abstain from voting if such shareholder has a conflict of interest. If the relevant resolution in question had not been approved but for the vote of the shareholder in conflict.

 

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Redemption and Rights of Withdrawal

Under Article 200 of the Peruvian Corporate Law, holders of our common shares have redemption rights if: (i) we change our corporate purpose; (ii) a change occurs in the place of organization to a foreign country; or (iii) any transformation, merger or significant spin-off occurs with respect to our company.

Preemptive and Accretion Rights

If we increase our share capital, holders of our common shares and investment shares have the right to subscribe to new common shares and investment shares, respectively, on a pro rata basis. Holders of common shares have preemptive rights in order to maintain their share interest in our share capital, unless the capital increase (i) results from a conversion of debt to common shares, (ii) is approved by shareholders representing at least 40% of the subscribed voting shares provided that the capital increase does not favor, directly or indirectly, certain shareholders to the detriment of others, and (iii) results from a corporate reorganization. Holders of investment shares have preemptive rights to maintain their proportional ownership in our share capital.

Shareholders who are in default of any payments relating to a capital call may not exercise their preemptive rights.

Preemptive rights are exercised in two rounds. During the first round, shareholders may subscribe to the new shares on a pro rata basis. During the second round, shareholders who participated in the first round may subscribe to any remaining shares on a pro rata basis up to the amount of shares such shareholders subscribed for in the first round. The first round must remain open for at least 15 business days. The second round must remain open for at least three business days.

Voting Rights and Dividends

Common Shares

Holders of common shares are entitled to one vote per share, with the exception of the election of the board of directors, where each holder is entitled to one vote per share per nominee. Each holder’s votes may be cast for a single nominee or distributed among the nominees at the holder’s discretion. To that effect, each of our common shares gives the holder the right to as many votes as there are directors to be elected. Shareholders may pool votes in favor of one person or distribute them among various persons. Those candidates for the board who receive the most votes are elected directors. Holders of common shares may attend and vote at shareholders’ meetings either in person or through a proxy.

Holders of common shares have the right to participate in the distribution of dividends and shareholder equity resulting from liquidation. Our by-laws do not establish a maximum time limit for the payment of the dividends. However, according to Article 232 of the Peruvian Corporate law, the right to collect past-due dividends in the case of companies that are publicly held companies, such as ours, expires 10 years after the date on which the dividend payment was due.

Our share capital may be increased by a decision of holders of common shares at a shareholders’ meeting. Capital reductions may be voluntary or mandatory and must be approved by holders of common shares at a shareholders’ meeting. Capital reductions are mandatory when accumulated losses exceed 50% of the capital and to the extent such accumulated losses are not offset by accumulated earnings and capital increases within the following fiscal year. Capital increases and reductions must be communicated to the Peruvian Securities Commission, the Lima Stock Exchange and the Superintendencia Nacional de Administración Tributaria ( SUNAT ). Capital reductions must also be published in the official gazette El Peruano and in a widely circulated newspaper in the city in which we are located.

 

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Investment Shares

Under Peruvian Corporate Law, investment shares do not represent share capital. Accordingly, our balance sheet reflects the investment shares as a separate account from our share capital. Holders of investment shares are neither entitled to vote nor to participate in shareholders’ meetings. However, investment shares confer upon the holders thereof the right to participate in the dividends distributed according to their par value, in the same manner as common shares. Investment shares also confer to the holders thereof the preemptive right to (i) maintain the current proportion of the investment shares in the case of a capital increase through new contributions; (ii) increase the number of investment shares upon capitalization of retained earnings, revaluation surplus or other reserves that do not represent cash contributions; (iii) participate in the distribution of assets resulting from a liquidation in the same manner as common shares; and, (iv) redeem the investment shares in case of a merger and/or change of business activity.

Liquidation Rights

If we are liquidated, our shareholders have the right to receive net assets resulting from the liquidation, after we comply with our obligation to pay all our creditors and after discounting any existing dividend liabilities. For this reason, we cannot assure that we will be able to reimburse 100% of the book value of the common shares and investment shares in case of bankruptcy or liquidation.

Ordinary and Extraordinary Meetings

Pursuant to Peruvian Corporate Law and our by-laws, the annual shareholders’ meeting must be held during the three-month period after the end of each fiscal year. Additional shareholders’ meetings may be held during the year. Because we are a publicly-held corporation, we are subject to the special control of the Peruvian Securities Commission, as provided in Article 253 of the Peruvian Corporate Law. If we do not hold the annual shareholders’ meeting during the three-month period after the end of each fiscal year or any other shareholders’ meeting required by our by-laws, a public notary or a competent judge shall call for such a meeting at the request of at least one shareholder of the common shares. Such meeting will take place within a reasonable period of time.

Other shareholders’ meetings are convened by the board of directors when deemed convenient by the Company or when it is requested by the holders of at least 20% of our common shares. If, at the request of holders of 20% of the common shares, the shareholders’ meeting is not convened by the board of directors within 15 business days of the receipt of such request, or the board expressly or implicitly refuses to convene the shareholders’ meeting, a public notary or a competent judge will call pursuant to Law N° 29560 for such meeting at the request of holders of at least 20% of our common shares. If a public notary or competent judge calls for a shareholders’ meeting, the place, time and hour of the meeting, the agenda and the person who will preside shall be indicated on the meeting notice. If the meeting called is other than the annual shareholders’ meeting or a shareholders’ meeting required by the Peruvian Corporate Law or the by-laws, the agenda will contain those matters requested by the shareholders who requested the meeting.

Holders of investment shares have no right to request the board to call a shareholders’ meeting.

Notices of Meetings

Since we are a publicly-held corporation, notice of shareholders’ meetings must be given by publication of a notice. The publication shall occur at least 25 days prior to any shareholders’ meeting in the Peruvian Official Gazette, El Peruano, and in a widely circulated newspaper in the city in which we are located. The notice requirement may be waived at the shareholders’ meeting by agreement of the holders of 100% of the outstanding common shares.

Quorum and Voting Requirements

According to Article 25 of our by-laws and Article 257 of the Peruvian Corporate Law, shareholders’ meetings called for the purpose of considering a capital increase or decrease, the issuance of obligations, a change in

 

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the by-laws, the sale in a single act of assets with an accounting value that exceeds 50% of our share capital, a merger, division, reorganization, transformation or dissolution, are subject to a first, second and third quorum call, each of the second and third quorum call to occur upon the failure of the preceding one. A quorum for the first call requires the presence of shareholders holding 50% of our total common shares. For the second call, the presence of shareholders holding at least 25% of our total common shares is adequate, while for the third call there is no quorum requirement. These decisions require the approval of the majority of the common shares represented at the shareholders’ meeting. Shareholders’ meetings convened to consider all other matters are subject to a first and second quorum call, the second quorum call to occur upon the failure of the first quorum.

In accordance with Peruvian Corporate Law, only those holders of common shares whose names are registered in the company’s stock ledger not less than 10 days in advance of a meeting will be entitled to attend the shareholders’ meeting and to exercise their rights.

Limitations on the Rights of Non-residents or Foreign Shareholders

There are no limitations under our by-laws or Peruvian Corporate Law on the rights of nonresidents or foreign shareholders to own securities or exercise voting rights with respect to our securities.

Disclosure of Shareholdings and Tender Offer Regulations

Disclosure of Shareholdings

There are no provisions in our by-laws governing the ownership threshold above which share ownership must be disclosed.

However, according to Article 10 of CONASEV Resolution N o  090-2005-EF-94.10, as amended, we must inform the Peruvian Securities Commission of the members of our economic group and a list of our holders of common shares owning more than a 5% share interest, as well as any change to such information.

Tender Offer Regulations

Peruvian security regulations include mandatory takeover rules applicable to the acquisition of control of a listed company.

Subject to certain conditions, such regulations generally establish the obligation to make a tender offer when a person or group of persons acquires a relevant interest in a listed company. According to Peruvian law, a person acquires a relevant interest in a listed company when such person (a) holds or has the power to exercise directly or indirectly 25%, 50% or 60% of the voting rights in a listed company, or (b) has the power to appoint or remove the majority of the board members or to amend its by-laws.

In general, the tender offer must be launched prior to the acquisition of the relevant interest. The tender offer may be launched after the “relevant interest” is acquired if it is acquired (a) by means of an indirect transaction, (b) as a consequence of a public sale offer, or (c) in no more than four transactions within a three-year period.

This mandatory procedure has the effect of alerting other shareholders and the market that an individual or financial group has acquired a significant percentage of a company’s voting shares, and gives other shareholders the opportunity to sell their shares at the price offered by the purchaser. The purchaser is required to launch a tender offer unless: (a) shareholders representing 100% of the voting rights consent in writing, (b) voting shares are acquired by a depositary in order to subsequently issue ADSs, or (c) voting shares are acquired pursuant to the exercise of preemptive rights.

 

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Changes in Capital

Our by-laws do not establish special conditions to increase or reduce our share capital beyond what is required under Peruvian Corporate Law.

Anti-Takeover Provisions

Our by-laws do not contain any provision that would have the effect of delaying, deferring or preventing a change of control. However, acquisitions of shares of our capital stock that involve a change of control may be subject to Peruvian securities and exchange regulations ( Ley de Mercado de Valores y Reglamento de Oferta Pública de Adquisición y de Compra de Valores por Exclusión ) applicable to tender offers.

Form and Transfer

Common shares and investment shares may be either physical share certificates in registered form or book-entry securities in the CAVALI S.A. ICLV book-entry settlement system, also in registered form.

Furthermore, the Peruvian Corporate Law forbids publicly-held corporations, such as us, from including in their by-laws stipulations limiting the transfer of their shares or restraining their trading in other ways. In addition, pursuant to our by-laws, we cannot recognize a shareholders’ agreement that contemplates limitations, restrictions or preferential rights on the transfer of shares, even if such an agreement is recorded in our stock ledger ( matrícula de acciones ) or in CAVALI S.A. ICLV.

 

C. Material Contracts

On December 31, 2007, we entered into a contract of general management and provision of services with IPSA, pursuant to which we provide legal and corporate services to it. See “Item 7. Major Shareholders and Related Party Transactions—A. Related Party Transactions.”

On February 1, 2008, we entered into a surface rights agreement with Compañía Minera Ares S.A.C., pursuant to which we lease a plot of land adjacent to our headquarters to our affiliate, Compañía Minera Ares S.A.C., a subsidiary of Hochschild Mining plc. See “Item 7. Major Shareholders and Related Party Transactions—A. Related Party Transactions.”

On June 30, 2008, we entered into a property lease agreement with IPSA pursuant to which we lease part of our headquarters as office space to IPSA. See “Item 7. Major Shareholders and Related Party Transactions—A. Related Party Transactions.”

On June 3, 2010, we entered into a long-term electricity supply agreement with Electroperú, a government-owned company, which expires in July 2020, to serve the electricity requirements of our Pacasmayo facility. Electroperú has agreed to provide us with sufficient energy to operate our Pacasmayo facility at pre-determined maximum amounts during the term of the contract. Payments for electricity are based on a formula that takes into consideration our energy consumption and certain market variables, such as the U.S. purchase price index, the global price of oil, the local price of natural gas and the import price of bituminous coal. See “Item 4. Information on the Company—A. History and Development of the Company—Raw Materials and Energy Sources.”

On December 27, 2011, we entered into a secured loan with BBVA Banco Continental in the amount of S/.202.2 million (US$75 million) accruing interest at an annual rate of 6.37% for the first year, 6.64% for the second year and 7.01% for the following years, and maturing in December 2018. The loan is secured by our current collateral trust, which holds substantially all of our assets at our Pacasmayo facility and our Acumulación Tembladera quarry. This loan was paid in full in February 2013. See “Item 5. Operating and Financial Revenues and Prospects—B. Liquidity and Capital Resources.”

 

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In 2012, we entered into a supply agreement, later amended in 2013, with ThyssenKrupp Polysius and Loesche for US$113.4 million for the provision of key equipment for our new plant in Pirua; which is expected to have an annual production capacity of 1.6 million metric tons of cement and 1.0 million tons of clinker.

In February 2013, we issued US$300,000,000 of our 4.50% Senior Notes due 2023, as part of our first international bond offering. Proceeds have been used to prepay amounts outstanding our secured loan agreement with BBVA Banco Continental and the remaining will be used in capital expenditures incurred in connection with the construction and operation of the new Piura plant and our cement business.

 

D. Exchange Controls

Since August 1990, there have been no exchange controls in Peru and all foreign exchange transactions are based on free market exchange rates. Prior to August 1990, the Peruvian foreign exchange market consisted of several alternative exchange rates. Additionally, during the 1990s, the Peruvian currency has experienced a significant number of large devaluations, and Peru has consequently adopted, and operated under, various exchange rate control practices and exchange rate determination policies, ranging from strict control over exchange rates to market determination of rates. Current Peruvian regulations on foreign investment allow the foreign holders of equity shares of Peruvian companies to receive and repatriate 100 percent of the cash dividends distributed by such companies. Such investors are allowed to purchase foreign exchange at free market currency rates through any member of the Peruvian banking system and transfer such foreign currency outside Peru without restriction.

 

E. Taxation

The following summary contains a description of certain Peruvian and United States federal income tax consequences of the acquisition, ownership and disposition of common shares or ADSs, but it does not purport to be a comprehensive description of all the tax considerations that may be relevant to a decision to purchase common shares or ADSs. The summary is based upon the tax laws of Peru and regulations thereunder and on the tax laws of the United States and regulations thereunder as in effect on the date hereof, which are subject to change.

Prospective holders of common shares or ADSs should consult their own tax advisors as to the tax consequences of the acquisition, ownership and disposition of common shares or ADSs in their particular circumstances.

Peruvian Tax Considerations

The following are the principal tax consequences of ownership of ADSs by non-resident individuals or entities (“Non-Peruvian Holders”) as of the date hereof. Legislative, judicial or administrative changes or interpretations may, however, be forthcoming. Any such changes or interpretations could affect the tax consequences to holders of ADSs and could alter or modify the conclusions set forth herein. This summary is not intended to be a comprehensive description of all the tax consequences of acquisition, ownership and disposition of common shares or ADSs and does not describe any tax consequences arising under the laws of any taxing jurisdiction other than Peru or applicable to a resident of Peru or to a person with a permanent establishment in Peru.

For purposes of Peruvian taxation:

 

   

individuals are residents of Peru, if they are Peruvian nationals who have established their principal place of residence in Peru or if they are foreign nationals with a permanence in Peru of 183 days in any 12-month period (the condition of Peruvian resident can only be acquired as of the 1st of January of the year following the fulfillment of residence conditions); and

 

   

legal entities are residents of Peru if they are established or incorporated in Peru.

 

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Cash Dividends and Other Distributions

Cash dividends paid with respect to common shares and amounts distributed with respect to ADSs are currently subject to a Peruvian withholding income tax, at a rate of 4.1% over the dividend paid, when the dividend is paid to shareholders that are Non-Peruvian Holders. As a general rule, the distribution of additional common shares representing profits, distribution of shares which differ from the distribution of earnings or profits, as well as the distribution of preemptive rights with respect to common shares, which are carried out as part of a pro rata distribution to shareholders, will not be subject to Peruvian tax or withholding taxes.

Capital Gains

Pursuant to Article 6 of the Peruvian income tax law, individuals and entities resident in Peru are subject to Peruvian income tax on their worldwide income while Non-Peruvian Holders are subject to Peruvian income tax on Peruvian source income only.

Peruvian income tax law provides that income derived from the disposal of securities issued by Peruvian entities is considered Peruvian source income and is therefore subject to income tax. Peruvian income tax law also provides that capital gains resulting from the disposal of ADRs that represent shares issued by Peruvian entities are considered Peruvian source income and therefore also subject to Peruvian income tax. Peruvian income tax law also provides that taxable income resulting from the disposal of securities is determined by the difference between the sale price of the securities at market value and the tax basis.

Notwithstanding the foregoing, capital gains resulting from the disposal of ADSs or beneficial interest in ADSs that represent shares issued by a Peruvian entity are not considered Peruvian source income as long as the ADSs issued by the foreign depositary are held in the name of a nominee and such ADSs are not transferred to a third party as a result of the disposal of the ADSs.

In the event ADSs are exchanged into common shares and such common shares are disposed of, capital gains resulting therefrom will be subject to an income tax rate of either 5% or 30%, depending on where the transaction takes place. If the transaction is consummated in Peru, the income tax rate is 5%; if the transaction is consummated outside of Peru, capital gains are taxed at a rate of 30%. Peruvian income tax law regulations have stated that transactions are deemed to be consummated in Peru if the common shares are transferred through the Lima Stock Exchange. In any given year, the first five tax units (approximately US$6,500) of capital gains derived from the transfer of securities by a Non-Peruvian Holder, who is also a natural person, are exempt from income tax. Any gain resulting from the conversion of ADRs into common shares or common shares into ADRs will not be subject to taxation in Peru.

Any Non-Peruvian Holder who acquires common shares will have the following tax basis: (i) for common shares purchased by the transferor, the acquisition price paid for the shares; (ii) for common shares received by the transferor as a result of a share capital increase because of a capitalization of net profits, the face or nominal value of such common shares; (iii) for other common shares received free of any payment, the stock market value of such shares if listed on the Lima Stock Exchange or, if not, the face or nominal value of such common shares and (iv) for common shares of the same type acquired at different opportunities and at different values, the tax basis will be the weighted average cost. In cases where common shares are sold by Non-Peruvian Holders outside the Lima Stock Exchange, the tax basis must be certified by the Peruvian tax administration prior to the time payment is made to the transferor; otherwise it would not be possible to deduct the tax basis and a 30% Peruvian income tax would apply to the total sale price. Under Peruvian income tax law, tax basis certification is granted by the tax authorities within 30 days from the date of the application (which application must contain supporting evidence with respect to the tax basis) is made by the transferor. If the tax authorities do not respond within such 30 day period, the tax basis presented for approval by the transferor is deemed automatically approved.

On December 31, 2010, Law No. 29645 was enacted and took effect from January 1, 2011. This law states that in transactions relating to Peruvian securities through the Lima Stock Exchange, CAVALI S.A. ICLV (the Peruvian clearing house) will act as withholding agent to the extent that such transactions are settled in cash through CAVALI’s account ( liquidación en efectivo ). The implementing regulations of Law No. 29645 enacted on July 9, 2011 provide that CAVALI will begin acting as a withholding agent as from November 1, 2011. As a result, while

 

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such regulations do not come into force with regard to securities transferred though the Lima Stock Exchange by a Non-Peruvian Holder, such transferor must still self-assess and pay its income tax liability directly to Peruvian tax authorities within the first 12 working days following the month in which Peruvian source income was earned. With respect to transactions of Peruvian securities conducted through the Lima Stock Exchange that are settled directly without CAVALI’s intervention ( liquidación directa ), Non-Peruvian Holders are required to self-assess and pay income taxes directly to the Peruvian tax authorities within the first 12 working days following the month in which income from a Peruvian source was earned. Finally, if the purchaser is resident in Peru and the sale is not performed through the Lima Stock Exchange, the purchaser will act as withholding agent.

Other Considerations

No Peruvian estate or gift taxes are imposed on the gratuitous transfer of ADSs or common shares. No stamp, transfer or similar tax applies to any transfer of common shares, except for commissions payable by seller and buyer to the Lima Stock Exchange (0.15% of value sold), fees payable to CONASEV (0.05% of value sold), brokers’ fees (about 0.05% to 1% of value sold) and Value Added Tax (at the rate of 18%) on commissions and fees. Any investor who sells its common shares on the Lima Stock Exchange will incur these fees and taxes upon purchase and sale of the common shares.

United States Federal Income Tax Considerations

The following are the material United States federal income tax consequences as of the date hereof to a United States Holder (as defined below) of the acquisition, ownership and disposition of our common shares and ADSs. Except where noted, this summary deals only with common shares and ADSs held as capital assets (generally, property held for investment). As used herein, the term “United States Holder” means a beneficial owner of common shares or ADSs that is for United States federal income tax purposes:

 

   

an individual citizen or resident of the United States;

 

   

a corporation (or other entity treated as a corporation for United States federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia;

 

   

an estate the income of which is subject to United States federal income taxation regardless of its source; or

 

   

a trust if it (1) is subject to the primary supervision of a court within the United States and one or more United States persons have the authority to control all substantial decisions of the trust, or (2) has a valid election in effect under applicable United States Treasury regulations to be treated as a United States person.

This summary does not represent a detailed description of the United States federal income tax consequences applicable to you if you are subject to special treatment under the United States federal income tax laws, including if you are:

 

   

a dealer in securities or currencies;

 

   

a financial institution;

 

   

a regulated investment company;

 

   

a real estate investment trust;

 

   

an insurance company;

 

   

a tax-exempt organization;

 

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a person holding our common shares or ADSs as part of a hedging, integrated or conversion transaction, a constructive sale or a straddle;

 

   

a trader in securities that has elected the mark-to-market method of accounting for your securities;

 

   

a person liable for alternative minimum tax;

 

   

a person who owns or is deemed to own 10% or more of our voting stock;

 

   

a partnership or other pass-through entity for United States federal income tax purposes; or

 

   

a person whose “functional currency” is not the U.S. dollar.

The discussion below is based upon the provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and regulations, rulings and judicial decisions thereunder as of the date hereof, and such authorities may be replaced, revoked or modified so as to result in United States federal income tax consequences different from those discussed below. There is currently no income tax treaty between the United States and Peru that would provide for United States federal income tax consequences different from those discussed below. In addition, this summary is based, in part, upon representations made by the depositary to us and assumes that the deposit agreement, and all other related agreements, will be performed in accordance with their terms.

If a partnership (or other entity treated as a partnership for United States federal income tax purposes) holds our common shares or ADSs, the tax treatment of a partner in the partnership will generally depend upon the status of the partner and the activities of the partnership. If you are a partner of a partnership holding our common shares or ADSs, you should consult your tax advisors.

This summary does not address the effects of any state, local or non-United States tax laws. If you are considering the acquisition, ownership or disposition of our common shares or ADSs, you should consult your own tax advisors concerning the United States federal income tax consequences to you in light of your particular situation as well as any consequences arising under the laws of any other taxing jurisdiction.

ADSs

If you hold ADSs, for United States federal income tax purposes, you generally will be treated as the owner of the underlying common shares that are represented by such ADSs. Accordingly, deposits or withdrawals of common shares for ADSs will not be subject to United States federal income tax.

Taxation of Dividends

The gross amount of distributions on the ADSs or common shares (including amounts withheld to reflect Peruvian withholding taxes) will be taxable as dividends, to the extent paid out of our current or accumulated earnings and profits, as determined under United States federal income tax principles.

To the extent that the amount of any distribution (including amounts withheld to reflect Peruvian withholding taxes) exceeds our current and accumulated earnings and profits for a taxable year, as determined under United States federal income tax principles, the distribution will first be treated as a tax-free return of capital, causing a reduction in the adjusted basis of the ADSs or common shares, and the balance in excess of adjusted basis will be taxed as capital gain recognized on a sale or exchange. However, we do not expect to keep earnings and profits in accordance with United States federal income tax principles. Therefore, you should expect that a distribution will generally be treated as a dividend. Such dividends (including withheld taxes) will be includable in your gross income as ordinary income on the day actually or constructively received by you, in the case of the common shares, or by the depositary, in the case of ADSs. Such dividends will not be eligible for the dividends received deduction allowed to corporations under the Code.

 

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With respect to non-corporate United States Holders, certain dividends received in taxable years beginning before January 1, 2013 from a qualified foreign corporation may be subject to reduced rates of taxation. A non-United States corporation is treated as a qualified foreign corporation with respect to dividends received from that corporation on common shares (or ADSs backed by such shares) that are readily tradable on an established securities market in the United States. United States Treasury Department guidance indicates that our ADSs, which are listed on the New York Stock Exchange, but not our common shares, are readily tradable on an established securities market in the United States. Thus, we believe that dividends we pay on our common shares that are represented by ADSs, but not our common shares that are not so represented, will meet such conditions required for the reduced tax rates. There can be no assurance that our ADSs will be considered readily tradable on an established securities market in later years. Non-corporate United States Holders that do not meet a minimum holding period requirement during which they are not protected from the risk of loss or that elect to treat the dividend income as “investment income” pursuant to Section 163(d)(4) of the Code will not be eligible for the reduced rates of taxation regardless of our status as a qualified foreign corporation. In addition, the rate reduction will not apply to dividends if the recipient of a dividend is obligated to make related payments with respect to positions in substantially similar or related property. This disallowance applies even if the minimum holding period has been met. You should consult your own tax advisors regarding the application of these rules given your particular circumstances.

The amount of any dividend paid in nuevos soles will equal the U.S. dollar value of the nuevos soles received, calculated by reference to the exchange rate in effect on the date the dividend is actually or constructively received by you, in the case of the common shares, or by the depositary, in the case of ADSs, regardless of whether the nuevos soles are converted into U.S. dollars at that time. If the nuevos soles received as a dividend are converted into U.S. dollars on the date they are received, you generally will not be required to recognize foreign currency gain or loss in respect of the dividend income. If the nuevos soles received as a dividend are not converted into U.S. dollars on the date of receipt, you will have a tax basis in the nuevos soles equal to their U.S. dollar value on the date of receipt. Any gain or loss realized on a subsequent conversion or other disposition of the nuevos soles will be treated as United States source ordinary income or loss.

Subject to certain conditions and limitations, Peruvian withholding taxes on dividends may be treated as foreign taxes eligible for credit against your United States federal income tax liability. For purposes of calculating the foreign tax credit, dividends paid on the ADSs or common shares will be treated as foreign source income and will generally constitute passive category income. However, in certain circumstances, if you have held the ADSs or common shares for less than a specified minimum period during which you are not protected from risk of loss, or are obligated to make payments related to the dividends, you will not be allowed a foreign tax credit for any Peruvian withholding taxes imposed on dividends paid on the ADSs or common shares. If you do not elect to claim a United States foreign tax credit, you may instead claim a deduction for Peruvian income tax withheld, but only for a taxable year in which you elect to do so with respect to all foreign income taxes paid or accrued in such taxable year. The rules governing the foreign tax credit are complex. You are urged to consult your tax advisors regarding the availability of the foreign tax credit under your particular circumstances.

Taxation of Capital Gains

For United States federal income tax purposes, you will recognize taxable gain or loss on any sale or exchange of ADSs or common shares in an amount equal to the difference between the amount realized for the ADSs or common shares and your tax basis in the ADSs or common shares. Such gain or loss will generally be capital gain or loss. Capital gains of non-corporate United States Holders derived with respect to capital assets held for more than one year are eligible for reduced rates of taxation. The deductibility of capital losses is subject to limitations.

If a Peruvian income tax is withheld on the sale or other disposition of our ADSs or common shares, your amount realized will include the gross amount of the proceeds of that sale or other disposition before deduction of the Peruvian income tax. Any gain or loss recognized by you will generally be treated as United States source gain or loss. Consequently, in the case of gain from the disposition of ADSs or common shares that is subject to Peruvian income tax, you may not be able to benefit from the foreign tax credit for that Peruvian income tax ( i.e. , because the gain from the disposition would be United States source), unless you can apply the credit (subject to applicable limitations) against United States federal income tax payable on other income from foreign sources. Alternatively, you may take a deduction for the Peruvian income tax if you do not take a credit for any foreign taxes paid or

 

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accrued during the taxable year. You are urged to consult your tax advisors regarding the tax consequences if Peruvian income tax is imposed on a disposition of ADSs or common shares, including the availability of the foreign tax credit under your particular circumstances.

Passive Foreign Investment Company

We do not believe that we are, for United States federal income tax purposes, a PFIC, and we expect to operate in such a manner so as not to become a PFIC. If, however, we are or become a PFIC, you could be subject to additional United States federal income taxes on gain recognized with respect to the ADSs or common shares and on certain distributions, plus an interest charge on certain taxes treated as having been deferred under the PFIC rules. Non-corporate United States Holders will not be eligible for reduced rates of taxation on any dividends received from us in taxable years beginning before January 1, 2013 (as discussed above under “Taxation of Dividends”), if we are a PFIC in the taxable year in which such dividends are paid or in the preceding taxable year.

Information Reporting and Backup Withholding

In general, information reporting will apply to dividends in respect of our ADSs or common shares and the proceeds from the sale, exchange or redemption of our ADSs or common shares that are paid to you within the United States (and in certain cases, outside the United States), unless you are an exempt recipient. Backup withholding may apply to such payments if you fail to provide a taxpayer identification number or certification of other exempt status or fail to report in full dividend and interest income.

Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against your United States federal income tax liability provided the required information is furnished to the Internal Revenue Service in a timely manner.

The above description is not intended to constitute a complete analysis of all tax consequences relating to the acquisition, ownership or disposition of our ADSs or common shares. You should consult your own tax advisors concerning the overall tax consequences to you, including the consequences under laws other than United States federal income tax laws, of an investment in our ADSs or common shares.

 

F. Dividends and Paying Agents

Not applicable.

 

G. Statement by Experts

Not applicable.

 

H. Documents on Display

We make our filings in electronic form under the EDGAR filing system of the SEC. Our filings are available through the EDGAR system at www.sec.gov. In addition, our filings are available to the public over our website www.cementospacasmayo.com.pe. Such filings and other information on our website are not incorporated by reference in this annual report. You may request a copy of this filing, and any other report, at no cost, by writing to us at the following address or telephoning us:

Investor Relations Department

Calle La Colonia 150,

Urbanización El Vivero, Surco,

Lima, Peru.

Tel.: + (511) 317-6000

E-mail: cbustamante@cpsaa.com.pe

 

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I. Subsidiary Information

See the note 1 to our consolidated financial statements included in this annual report for a description of the Company’s subsidiaries.

ITEM 11. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

For a description of our market risks, see note 28 to our consolidated financial statements included in this annual report.

ITEM 12. DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES

 

A. Debt Securities.

Not applicable.

 

B. Warrants and Rights

Not applicable.

 

C. Other Securities

Not applicable.

 

D. American Depositary Shares

Fees and expenses

JPMorgan Chase Bank, N.A., as depositary, pursuant to our Deposit Agreement, dated as of February 7, 2012 (the “Deposit Agreement”) may charge each person to whom ADSs are issued, including, without limitation, issuances against deposits of common shares, issuances in respect of common share distributions, rights and other distributions, issuances pursuant to a stock dividend or stock split declared by us or issuances pursuant to a merger, exchange of securities or any other transaction or event affecting the ADSs or deposited securities, and each person surrendering ADSs for withdrawal of deposited securities or whose ADRs are cancelled or reduced for any other reason, US$5.00 for each 100 ADSs (or any portion thereof) issued, delivered, reduced, cancelled or surrendered, as the case may be. The depositary may sell (by public or private sale) sufficient securities and property received in respect of a common share distribution, rights and/or other distribution prior to such deposit to pay such charge.

The following additional charges shall be incurred by the ADR holders, by any party depositing or withdrawing common shares or by any party surrendering ADSs or to whom ADSs are issued (including, without limitation, issuance pursuant to a stock dividend or stock split declared by us or an exchange of stock regarding the ADRs or the deposited securities or a distribution of ADSs), whichever is applicable:

 

   

a fee of US$1.50 per ADR or ADRs for transfers of certificated or direct registration ADRs;

 

   

a fee of US$0.05 or less per ADS for any cash distribution made pursuant to the deposit agreement;

 

   

a fee of US$0.05 or less per ADS per calendar year (or portion thereof) for services performed by the depositary in administering the ADRs (which fee may be charged on a periodic basis during each calendar year and shall be assessed against holders of ADRs as of the record date or record dates set by the depositary during each calendar year and shall be payable in the manner described in the next succeeding provision);

 

   

reimbursement of such fees, charges and expenses as are incurred by the depositary and/or any of the depositary’s agents (including, without limitation, the custodian and expenses incurred on behalf of

 

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holders in connection with compliance with foreign exchange control regulations or any law or regulation relating to foreign investment) in connection with the servicing of the common shares or other deposited securities, the delivery of deposited securities or otherwise in connection with the depositary’s or its custodian’s compliance with applicable law, rule or regulation (which charge shall be assessed on a proportionate basis against holders as of the record date or dates set by the depositary and shall be payable at the sole discretion of the depositary by billing such holders or by deducting such charge from one or more cash dividends or other cash distributions);

 

   

a fee for the distribution of securities (or the sale of securities in connection with a distribution), such fee being in an amount equal to US$0.05 per ADS issuance fee for the execution and delivery of ADSs which would have been charged as a result of the deposit of such securities (treating all such securities as if they were common shares) but which securities or the net cash proceeds from the sale thereof are instead distributed by the depositary to those holders entitled thereto;

 

   

stock transfer or other taxes and other governmental charges;

 

   

cable and facsimile transmission and delivery charges incurred at your request in connection with the deposit or delivery of common shares;

 

   

transfer or registration fees for the registration of transfer of deposited securities on any applicable register in connection with the deposit or withdrawal of deposited securities; and

 

   

expenses of the depositary in connection with the conversion of foreign currency into U.S. dollars.

We will pay all other charges and expenses of the depositary and any agent of the depositary (except the custodian) pursuant to agreements from time to time between us and the depositary. The charges described above may be amended from time to time by agreement between us and the depositary.

Our depositary has agreed to reimburse us for certain expenses we incur that are related to establishment and maintenance of the ADR program, including investor relations expenses and exchange application and listing fees. The amounts of reimbursements available to us are not based upon the amounts of fees the depositary collects from investors. The depositary collects its fees for issuance and cancellation of ADSs directly from investors depositing common shares or surrendering ADSs for the purpose of withdrawal or from intermediaries acting on their behalf. The depositary collects fees for making distributions to investors by deducting those fees from the amounts distributed or by selling a portion of distributable property to pay the fees. The depositary may collect its annual fee for depositary services by deduction from cash distributions, or by directly billing investors, or by charging the book-entry system accounts of participants acting for them. The depositary will generally set off the amounts owing from distributions made to holders of ADSs. If, however, no distribution exists and payment owing is not timely received by the depositary, the depositary may refuse to provide any further services to holders that have not paid those fees and expenses owing until such fees and expenses have been paid. At the discretion of the depositary, all fees and charges owing under the deposit agreement are due in advance and/or when declared owing by the depositary.

The Deposit Agreement is filed as Exhibit 2.2 to this annual report. We encourage you to review this document carefully if you are a holder of ADRs.

PART II

ITEM 13. DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES

Not applicable.

ITEM 14. MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS

Not applicable.

 

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ITEM 15. CONTROLS AND PROCEDURES

 

A. Disclosure Controls and Procedures

As of the end of the period covered by this annual report, management, with the participation of the company’s Chief Executive Officer and Chief Financial Officer, performed an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act. Our disclosure controls and procedures are designed to ensure that information required to be disclosed in the reports we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to our management, including the Chief Executive Officer and the Chief Financial Officer, to allow timely decisions regarding required disclosures. Any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objective. Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that, as of December 31, 2012, the design and operation of our disclosure controls and procedures were effective at the reasonable assurance level.

 

B. Management’s Annual Report on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Our internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of the financial statements for external purposes in accordance with generally accepted accounting principles.

Because of its inherent limitations, internal control over financial reporting may not necessarily prevent or detect some misstatements. It can only provide reasonable assurance regarding financial statement preparation and presentation. Also, projections of any evaluation of effectiveness for future periods are subject to the risk that controls may become inadequate because of changes in conditions or because the degree of compliance with the polices or procedures may deteriorate over time.

Management assessed the effectiveness of its internal control over financial reporting for the year ended December 31, 2012. The assessment was based on criteria established in the framework “Internal Controls—Integrated Framework” issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on the assessment, our management has concluded that as of December 31, 2012, our internal control over financial reporting was effective.

The effectiveness of internal control over financial reporting as of December 31, 2012 has been audited by Medina, Zaldívar, Paredes & Asociados SCRL, member firm of Ernst & Young Global, an independent registered public accounting firm, as stated in their attestation report, which is included under “Item 18—Financial Statements.”

 

C. Attestation Report of the Registered Public Accounting Firm

We have audited Cementos Pacasmayo S.A.A.’s internal control over financial reporting as of December 31, 2012, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). Cementos Pacasmayo S.A.A.’s management is responsible for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management’s Report on Internal Control Over Financial Reporting. Our responsibility is to express an opinion on the company’s internal control over financial reporting based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States of America). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects.

 

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Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

In our opinion, Cementos Pacasmayo S.A.A. and subsidiaries maintained, in all material respects, effective internal control over financial reporting as of December 31, 2012, based on the COSO criteria.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States of America), the 2012 consolidated financial statements of Cementos Pacasmayo S.A.A. and subsidiaries and our report dated April 29, 2013, expressed an unqualified opinion thereon.

 

D. Changes in Internal Control Over Financial Reporting

There have been no changes in our internal control over financial reporting identified in connection with the evaluation required under Rules 13a-15 or 15d-15 that occurred during the period covered by this annual report that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

ITEM 16. [RESERVED]

ITEM 16A. AUDIT COMMITTEE FINANCIAL EXPERT

The Board of Directors has determined that Ms. Hilda Ochoa- Brillembourg, a member of the audit committee, is a “financial expert,” as such term is defined in the SEC rules. We have determined that Ms. Hilda Ochoa- Brillembourg and Mr. Gianfranco Castagnola Zúñiga are independent under the standards of the NYSE listing rules and Rule 10A-3 under the Exchange Act.

ITEM 16B. CODE OF BUSINESS CONDUCT AND ETHICS

We have adopted a code of ethics that applies to our directors, officers and employees. Our code of ethics is available on our website http://www.cementospacasmayo.com.pe. Information on our website is not incorporated by reference in this form.

If we make any substantive amendment to the code of ethics or if we grant any waivers, including any implicit waiver, from a provision of the code of ethics, we will disclose the nature of such amendment or waiver in a Form 6-K or in our next Form 20-F to be filed with the SEC. During the year ended December 31, 2012, no such amendment was made or waiver granted.

 

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ITEM 16C. PRINCIPAL ACCOUNTANT FEES AND SERVICES

Audit and Non-Audit Fees

The following table presents the aggregate fees for professional services and other services rendered by our independent auditors, Medina, Zaldívar, Paredes & Asociados SCRL, member firm of Ernst & Young Global, responsible for auditing the annual consolidated financial statements included in the annual report, during the fiscal years ended December 31, 2011 and 2012.

 

     Year Ended December 31,  
     2011      2012  
     (in thousands of  S /.)  

Audit fees

     1,347         1,609   

Audit-related fees

     2,194         210   

Tax fees

     253         315   

All other fees

     1,293         1,893   
  

 

 

    

 

 

 

Total fees

     5,086.2         4,027   
  

 

 

    

 

 

 

Audit fees in the above table are the aggregate fees billed and billable by our independent auditors in connection with the audit of the Company’s annual consolidated financial statements and review of the Company’s quarterly financial information.

Audit-related fees in 2012 correspond to delivery of comfort letters.

Tax fees in the above table are fees billed relating to tax compliance services.

All other fees in 2012 primarily correspond to compliance services related to the US Sarbanes Oxley Act requirements.

Our audit committee is responsible for the oversight of the independent auditors and has established pre-approval procedures for the engagement of its registered public accounting firm for audit and non-audit services. Such services can only be contracted if they are approved by the audit committee, they comply with the restriction provided under applicable rules and they do not jeopardize the independence of our auditors.

ITEM 16D. EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES

We rely on an exemption contained in paragraph (b)(1)(iv)(A)(2) of Rule 10A-3 under the Exchange Act from the New York Stock Exchange listing requirement that each member of the audit committee of a listed issuer must be independent. Our audit committee is currently composed of three directors. The current members are Ms. Hilda Ochoa-Brillembourg, who is the Chairman of the audit committee, Mr. Raimundo Morales Dasso and Mr. Gianfranco Castagnola Zúñiga. Ms. Hilda Ochoa-Brillembourg and Mr. Gianfranco Castagnola Zúñiga qualify as independent in accordance with the SEC rules applicable to foreign private issuers. Mr. Raimundo Morales Dasso does not qualify as independent under Rule 10A-3(b) of the Securities Exchange Act. We believe our reliance on this exemption does not have any adverse effect on the ability of our audit committee to act independently.

ITEM 16E. PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS

Not applicable.

ITEM 16F. CHANGE IN REGISTRANT’S CERTIFYING ACCOUNTANT

Not applicable.

 

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ITEM 16G. CORPORATE GOVERNANCE

We are a “foreign private issuer” within the meaning of the New York Stock Exchange corporate governance standards. Under New York Stock Exchange rules, a foreign private issuer may elect to comply with the practices of its home country and not to comply with certain corporate governance requirements applicable to U.S. companies with securities listed on the exchange.

We currently follow certain Peruvian practices concerning corporate governance and intend to continue to do so. There are significant differences in the Peruvian corporate governance practices as compared to those followed by United States domestic companies under the New York Stock Exchange’s listing standards.

The New York Stock Exchange listing standards provide that the board of directors of a U.S. listed company must have a majority of independent directors at the time the company ceases to be a “controlled company”. Under Peruvian corporate governance practices, a Peruvian company is not required to have a majority of independent members on its board of directors.

The listing standards for the New York Stock Exchange also require that U.S. listed companies, at the time they cease to be “controlled companies”, have a nominating/corporate governance committee and a compensation committee (in addition to an audit committee). Each of these committees must consist solely of independent directors and must have a written charter that addresses certain matters specified in the listing standards. Under Peruvian law, a Peruvian company may, but is not required to, form special governance committees, which may be composed partially or entirely of non-independent directors.

In addition, New York Stock Exchange rules require the independent non-executive directors of U.S. listed companies to meet on a regular basis without management being present. There is no similar requirement under Peruvian law.

The New York Stock Exchange’s listing standards also require U.S. listed companies to adopt and disclose corporate governance guidelines. In July 2002, the Peruvian Securities Commission and a committee comprised of regulatory agencies and associations prepared and published a list of suggested non-mandatory corporate governance guidelines called the “Principles of Good Governance for Peruvian Companies.” These principles are disclosed on the Peruvian Securities Commission web page http://www.conasev.gob.pe and the Lima Stock Exchange web page http://www.bvl.com.pe. Although we have implemented a number of these measures and have been selected to form part of the Best Corporate Governance Practices Index of the Lima Stock Exchange, we are not required to comply with the referred corporate governance guidelines by law or regulation.

PART III

ITEM 17. FINANCIAL STATEMENTS

Not applicable.

ITEM 18. FINANCIAL STATEMENTS

See our consolidated financial statements beginning at page F-1. Our financial statements have been prepared in accordance with IFRS as issued by the IASB.

 

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ITEM 19. EXHIBITS

 

Exhibit
Number

  

Description of Document

  1.1    By-laws of the Registrant, as currently in effect, incorporated by reference to Exhibit 1.1 of Cementos Pacasmayo S.A.A.’s Annual Report on Form 20-F filed with the Commission on April 30, 2012 (File No. 001-35401)
  4.1    Equipment Supply Contract, dated September 28, 2012 between the Registrant and Loesche GmbH
  4.2    Equipment Supply Contract, dated September 28, 2012 between the Registrant and Thyssenkrupp Polysius AG and Polysius Do Brasil Ltda.
  4.3    Addendum 1 to the Equipment Supply Contract between the Registrant and Thyssenkrupp Polysius AG and Polysius Do Brasil Ltda. dated February 21, 2013.
  4.4    Steel Structure Supply Contract, dated September 28, 2012 between the Registrant and Polysius Ingenieria y Servicios del Perú S.A.
12.1    Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 for Chief Executive Officer
12.2    Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 for Chief Financial Officer
13.1    Certification pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 for Chief Executive Officer
13.2    Certification pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 for Chief Financial Officer

 

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SIGNATURES

The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this annual report on its behalf.

 

CEMENTOS PACASMAYO S.A.A.
By:  

/s/ Humberto Nadal Del Carpio

Name:   Humberto Nadal Del Carpio
Title:   Chief Executive Officer
By:  

/s/ Manuel Ferreyros Peña

Name:   Manuel Ferreyros Peña
Title:   Chief Financial Officer

Date: April 29, 2013

 

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Cementos Pacasmayo S.A.A. and Subsidiaries

Consolidated financial statements as of December 31, 2012 and 2011 with the report of the Independent Auditors’ Report


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Content

Report of the Independent Auditors’ Report

Consolidated financial statements

Consolidated statements of financial position

Consolidated income statements

Consolidated statements of comprehensive income

Consolidated statements of changes in equity

Consolidated statements of cash flows

Notes to the consolidated financial statements


Table of Contents

Report of the Independent Registered Public Accounting Firm

To the Board of Directors and Shareholders of Cementos Pacasmayo S.A.A.

We have audited the accompanying consolidated statement of financial position of Cementos Pacasmayo S.A.A. and subsidiaries (together the “Group”), as of December 31, 2012 and 2011, and the related consolidated income statements, consolidated statements of comprehensive income, shareholders’ equity and consolidated statements of cash flows for each of the three years in the period ended December 31, 2012. These consolidated financial statements are the responsibility of the Company’s Management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free from material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the consolidated financial statements referred to above, present fairly, in all material respects, the consolidated financial position of Cementos Pacasmayo S.A.A. and subsidiaries as of December 31, 2012 and 2011 and the consolidated results of their operations and their cash flows for each of the three years in the period ended in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board (IASB).


Table of Contents

Report of the Independent Registered Public Accounting Firm

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Cementos Pacasmayo S.A.A.’s internal control over financial reporting as of December 31, 2012, based on criteria established in Internal Control – Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated April 29, 2013 expressed an unqualified opinion thereon.

Lima, Perú,

April 29, 2013

 

Countersigned by:

/s/ Marco Antonio Zaldívar

Marco Antonio Zaldívar
C.P.C.C. Register No.12477


Table of Contents

Cementos Pacasmayo S.A.A. and Subsidiaries

Consolidated statements of financial position

As of December 31,

 

     Note    2012      2011  
          S/.(000)      S/.(000)  

Assets

        

Current assets

        

Cash and term deposits

   6      473,785         363,279   

Trade and other receivables

   7      69,395         78,377   

Income tax prepayments

        21,464         705   

Inventories

   8      278,149         206,102   

Prepayments

        10,616         11,629   
     

 

 

    

 

 

 
        853,409         660,092   
     

 

 

    

 

 

 

Non-current assets

        

Other receivables

   7      36,110         29,146   

Available-for-sale financial investments

   9      34,887         22,074   

Property, plant and equipment

   10      1,394,835         1,197,401   

Exploration and evaluation assets

   11      49,486         29,895   

Deferred income tax assets

   15      13,438         7,813   

Other assets

        1,159         1,404   
     

 

 

    

 

 

 
        1,529,915         1,287,733   
     

 

 

    

 

 

 

Total assets

        2,383,324         1,947,825   
     

 

 

    

 

 

 

Liabilities and equity

        

Current liabilities

        

Trade and other payables

   12      132,764         128,485   

Interest-bearing loans and borrowings

   14      22,884         139,048   

Income tax payable

        75         12,870   

Provisions

   13      24,029         28,694   
     

 

 

    

 

 

 
        179,752         309,097   
     

 

 

    

 

 

 

Non-current liabilities

        

Interest-bearing loans and borrowings

   14      192,571         451,546   

Other non-current provisions

   13      16,578         10,909   

Deferred income tax liabilities, net

   15      100,308         102,688   
     

 

 

    

 

 

 
        309,457         565,143   
     

 

 

    

 

 

 

Total liabilities

        489,209         874,240   
     

 

 

    

 

 

 

Equity

   16      

Capital stock

        531,461         418,777   

Investment shares

        50,503         49,575   

Additional paid-in capital

        558,478         —     

Legal reserve

        105,221         90,451   

Other components of equity

        16,711         8,029   

Retained earnings

        570,878         473,721   
     

 

 

    

 

 

 

Equity attributable to owners of the parent

        1,833,252         1,040,553   

Non-controlling interests

        60,863         33,032   
     

 

 

    

 

 

 

Total equity

        1,894,115         1,073,585   
     

 

 

    

 

 

 

Total liabilities and equity

        2,383,324         1,947,825   
     

 

 

    

 

 

 

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

 

F-1


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Cementos Pacasmayo S.A.A. and Subsidiaries

Consolidated income statements

For the years ended December 31,

 

     Note    2012     2011     2010  
          S/.(000)     S/.(000)     S/.(000)  

Sales of goods

   17      1,169,808        994,970        898,047   

Cost of sales

   18      (713,058     (569,515     (478,990
     

 

 

   

 

 

   

 

 

 

Gross profit

        456,750        425,455        419,057   
     

 

 

   

 

 

   

 

 

 

Operating income (expenses)

         

Administrative expenses

   19      (203,067     (196,196     (158,697

Selling and distribution expenses

   20      (30,865     (23,707     (16,501

Other operating income, net

   22      7,706        9,338        16,661   

Impairment of zinc mining assets

   10(b)      —          (95,994     —     

Net gain on sale of land and mining concession

   22(a)      —          —          75,887   
     

 

 

   

 

 

   

 

 

 

Total operating expenses, net

        (226,226     (306,559     (82,650
     

 

 

   

 

 

   

 

 

 

Operating profit

        230,524        118,896        336,407   
     

 

 

   

 

 

   

 

 

 

Other income (expenses)

         

Finance income

   23      23,326        2,695        3,277   

Finance costs

   24      (23,771     (19,219     (15,038

(Loss) gain from exchange difference, net

   5      (736     1,476        2,568   
     

 

 

   

 

 

   

 

 

 

Total other expenses, net

        (1,181     (15,048     (9,193
     

 

 

   

 

 

   

 

 

 

Profit before income tax

        229,343        103,848        327,214   

Income tax expense

   15      (73,743     (38,379     (104,105
     

 

 

   

 

 

   

 

 

 

Profit for the year

        155,600        65,469        223,109   
     

 

 

   

 

 

   

 

 

 

Attributable to:

         

Owners of the parent

        159,005        67,694        223,219   

Non-controlling interests

        (3,405     (2,225     (110
     

 

 

   

 

 

   

 

 

 
        155,600        65,469        223,109   
     

 

 

   

 

 

   

 

 

 

Earnings per share

   26       

Basic and diluted profit for the year attributable to holders of common shares and investment shares of the parent (S/. per share)

        0.28        0.14        0.48   

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

 

F-2


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Cementos Pacasmayo S.A.A. and Subsidiaries

Consolidated statements of comprehensive income

For the years ended December 31,

 

     Note    2012     2011     2010  
          S/.(000)     S/.(000)     S/.(000)  

Profit for the year

        155,600        65,469        223,109   
     

 

 

   

 

 

   

 

 

 

Other comprehensive income

         

Change in fair value of available-for-sale financial investments

   9(a)      12,813        (8,739     12,517   

Deferred income tax related to component of other comprehensive income

   15      (3,844     2,622        (3,754

Exchange differences on translation of foreign currency

        (321     (274     (200
     

 

 

   

 

 

   

 

 

 

Other comprehensive income for the year, net of income tax

        8,648        (6,391     8,563   
     

 

 

   

 

 

   

 

 

 

Total comprehensive income for the year, net of income tax

        164,248        59,078        231,672   
     

 

 

   

 

 

   

 

 

 

Total comprehensive income attributable to:

         

Owners of the parent

        167,687        61,332        231,782   

Non-controlling interests

        (3,439     (2,254     (110
     

 

 

   

 

 

   

 

 

 
        164,248        59,078        231,672   
     

 

 

   

 

 

   

 

 

 

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

 

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Table of Contents

Cementos Pacasmayo S.A.A. and Subsidiaries

Consolidated statement of changes in equity

For the years ended December 31, 2012, 2011 and 2010

 

     Attributable to owners of the parent              
     Capital
stock
     Investment
shares
     Additional paid-
in capital
    Legal
reserve
     Available-for-
sale reserve
    Foreign
currency
translation
reserve
    Retained
earnings
    Total     Non-controlling
interests
    Total
equity
 
     S/.(000)      S/.(000)      S/.(000)     S/.(000)      S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)  

Balance as of January 1, 2010

     418,777         49,575         —          53,384         6,611        (783     306,100        833,664        849        834,513   

Profit for the year

     —           —           —          —           —          —          223,219        223,219        (110     223,109   

Other comprehensive income

     —           —           —          —           8,763        (200     —          8,563        —          8,563   
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total comprehensive income

     —           —           —          —           8,763        (200     223,219        231,782        (110     231,672   

Dividends, note 16 (h)

     —           —           —          —           —          —          (73,000     (73,000     —          (73,000

Dividends on treasury shares

     —           —           —          —           —          —          110        110        —          110   

Appropriation of legal reserve, note 16 (e)

     —           —           —          20,761         —          —          (20,761     —          —          —     
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2010

     418,777         49,575         —          74,145         15,374        (983     435,668        992,556        739        993,295   

Profit for the year

     —           —           —          —           —          —          67,694        67,694        (2,225     65,469   

Other comprehensive income

     —           —           —          —           (6,117     (245     —          (6,362     (29     (6,391
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total comprehensive income

     —           —           —             (6,117     (245     67,694        61,332        (2,254     59,078   

Dividends, note 16 (h)

     —           —           —          —           —          —          (91,000     (91,000     —          (91,000

Incorporation of non-controlling interests, note 1

     —           —           —          —           —          —          77,665        77,665        34,547        112,212   

Appropriation of legal reserve, note 16 (e)

     —           —           —          16,306         —          —          (16,306     —          —          —     
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2011

     418,777         49,575         —          90,451         9,257        (1,228     473,721        1,040,553        33,032        1,073,585   

Profit for the year

     —           —           —          —           —          —          159,005        159,005        (3,405     155,600   

Other comprehensive income

     —           —           —          —           8,969        (287     —          8,682        (34     8,648   
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total comprehensive income

     —           —           —          —           8,969        (287     159,005        167,687        (3,439     164,248   

Proceeds from the issue of common and investment shares, note 1

     111,484         928         561,191        —           —          —          —          673,603        —          673,603   

Appropriation of legal reserve, note 16(e)

     —           —           —          14,770         —          —          (14,770     —          —          —     

Dividends, note 16 (h)

     —           —           —          —           —          —          (52,000     (52,000     —          (52,000

Contribution of non-controlling interests, note 16(i)

     —           —           —          —           —          —          —          —          28,557        28,557   

Sale of treasury shares, note 16 (c)

     1,200         —           —          —           —          —          4,922        6,122        —          6,122   

Other adjustments of non-controlling interests, note 16(i)

     —           —           (2,713     —           —          —          —          (2,713     2,713        —     
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2012

     531,461         50,503         558,478        105,221         18,226        (1,515     570,878        1,833,252        60,863        1,894,115   
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

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

 

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Table of Contents

Cementos Pacasmayo S.A.A. and Subsidiaries

Consolidated statement of cash flows

For the years ended December 31,

 

     2012     2011     2010  
     S/.(000)     S/.(000)     S/.(000)  

Operating activities

      

Profit before income tax

     229,343        103,848        327,214   

Non-cash adjustments to reconcile profit before income tax to net cash flows

      

Depreciation and amortization

     47,954        47,633        36,288   

Long-term incentive plan

     5,529        6,000        —     

Gain on disposal of land and mining concession

     (3,901     —          (75,887

Provision (recovery) of impairment of inventories

     3,278        —          (8,549

Write-off of exploration and evaluation costs

     2,447        —          —     

Adjustment as a result of physical inventories

     (4,107     —          —     

Discount rate adjustment of long-term incentive plan

     140        —          —     

Write-off of intangibles

     —          —          1,363   

Impairment of zinc mining assets

     —          95,994        —     

Finance costs

     23,771        19,219        15,038   

Finance income

     (23,326     (2,695     (3,277

Other operating, net

     (206     1,666        4,734   

Working capital adjustments

      

Decrease (increase) in trade and other receivables

     17,224        (20,496     (11,977

Decrease (increase) in prepayments

     1,013        (620     (1,862

Increase in inventories

     (71,218     (45,786     (28,422

Increase in trade and other payables

     2,411        25,929        25,556   
  

 

 

   

 

 

   

 

 

 
     230,352        230,692        280,219   

Interests received

     7,514        2,695        2,218   

Interests paid

     (26,412     (19,059     (13,782

Income tax paid

     (111,723     (81,990     (89,105
  

 

 

   

 

 

   

 

 

 

Net cash flows provided by operating activities

     99,731        132,338        179,550   
  

 

 

   

 

 

   

 

 

 

 

F-5


Table of Contents

Consolidated statement of cash flows (continued)

 

     2012     2011     2010  
     S/.(000)     S/.(000)     S/.(000)  

Investing activities

      

Increase in time deposits with original maturities greater than 90 days

     (403,950     —          —     

Purchase of property, plant and equipment

     (248,194     (240,598     (97,978

Purchase of exploration and evaluation assets

     (22,038     (617     (12,086

Purchase of other non-current assets

     —          —          (1,443

Proceeds from sale of property, plant and equipment

     6,828        2,053        13,742   

Proceeds from sale of assets classified as held for sale

     —          —          78,424   
  

 

 

   

 

 

   

 

 

 

Net cash flows used in investing activities

     (667,354     (239,162     (19,341
  

 

 

   

 

 

   

 

 

 

Financing activities

      

Proceeds from issuance of common and investment shares

     666,180        —          —     

Payment of borrowings

     (388,394     (119,674     (163,952

Contribution of non-controlling interests

     28,557        4,779        —     

Proceeds from bank overdraft and borrowings

     13,255        403,013        121,000   

Dividends paid

     (52,016     (90,761     (72,606

Proceeds from sale of treasury shares

     6,122        —          —     

Proceeds from incorporation of non-controlling interests

     —          118,630        —     

Proceeds from dividends on treasury shares

     —          —          110   
  

 

 

   

 

 

   

 

 

 

Net cash flows provided by (used in) financing activities

     273,704        315,987        (115,448
  

 

 

   

 

 

   

 

 

 

Net (decrease) increase in cash and cash equivalents

     (293,919     209,163        44,761   

Net foreign exchange difference

     475        (377     (1,928

Cash and cash equivalents as of January 1

     363,279        154,493        111,660   
  

 

 

   

 

 

   

 

 

 

Cash and cash equivalents (net of outstanding bank overdrafts) as of December 31

     69,835        363,279        154,493   
  

 

 

   

 

 

   

 

 

 

Significant non-cash investing and financing activities:

      

Finance lease, note 10(c)

     —          —          32,834   

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

 

F-6


Table of Contents

Cementos Pacasmayo S.A.A. and Subsidiaries

Notes to the consolidated financial statements

As of December 31, 2012 and 2011

 

1. Corporate information

Cementos Pacasmayo S.A.A. (hereinafter “the Company”) was incorporated in 1957 and, under the Peruvian General Corporation Law, is an open stock corporation, with publicly traded shares. The Company is a subsidiary of Inversiones Pacasmayo S.A. (IPSA), which holds 50.94% of the Company’s common and investment shares and 52.63% of its common shares as of December 31, 2012 (63.92% and 67.47%, respectively, as of December 31, 2011). The registered office is located at Calle La Colonia No.150, Urbanizacion El Vivero, Santiago de Surco, Lima, Peru.

The Company’s main activity is the production and marketing of cement, blocks, concrete and quicklime in Peru’s Northern region.

The consolidated financial statements of the Company and its subsidiaries (hereinafter “the Group”) for the year ended December 31, 2012 were authorized for issue by the Management of the Company on April 29, 2013.

As of December 31, 2012, the consolidated financial statements comprise the financial statements of the Company and its subsidiaries: Cementos Selva S.A. and subsidiaries, Distribuidora Norte Pacasmayo S.R.L., Empresa de Transmisión Guadalupe S.A.C., Fosfatos del Pacífico S.A., Salmueras Sudamericanas S.A. and Zemex LLC.

The main activities of the subsidiaries incorporated in the consolidated financial statements are described:

 

   

Cementos Selva S.A. is engaged in production and marketing of cement and other construction materials in the northeast region of Peru. Also, it holds shares in Dinoselva Iquitos S.A.C. (a cement and construction materials distributor in the north of Peru) and in Acuícola Los Paiches S.A.C. (a fish farm entity).

 

   

Distribuidora Norte Pacasmayo S.R.L. is mainly engaged in selling cement produced by the Company. Additionally, it produces and sells blocks, cement bricks and ready-mix concrete.

 

   

Empresa de Transmision Guadalupe S.A.C. is mainly engaged in providing energy transmission services to the Company.

 

   

Fosfatos del Pacifico S.A., hereinafter “Fosfatos”, is mainly engaged in the exploration of phosphate rock deposits and the production of diatomite. In the Board of Directors’Meeting held on December 21, 2011, the Company agreed to sell 30 percent of the shares of this subsidiary to MCA Phosphates Pte. Ltda. ,hereinafter “MCA” (subsidiary of Mitsubishi Corporation, hereinafter “Mitsubishi”) for an aggregate purchase price of approximately US$46,100,000. As a consequence of this transaction the Group recognized a gain directly in equity, net of tax, commissions and other minor related costs for S/.77,665,000. In relation to this sale of shares, on December 29, 2011, Mitsubishi entered into an off-take agreement to purchase the future production of phosphate rock from this subsidiary. The off-take agreement has a term of 20 years, with an option for Mitsubishi to extend the term for additional 5 years upon expiration, see note 27. According to the business plan for the phosphate project, the subsidiary should be able to start production of phosphoric rock early 2016. Additionally, the Company and MCA signed a shareholders’ agreement including some clauses about “super-majority decisions” that needs to agreed between these parties and a call option and put option to be exercised by the Company and MCA, specifically in any deadlock decision or unexpected event defined in such agreement, see note 27. Management considers that the value to be recorded for those options is not significant at the date of the consolidated financial statements.

 

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Table of Contents

Notes to the consolidated financial statements (continued)

 

   

Zemex LLC was a diversified corporation, engaged in mining activities in United States of America and Canada. In 2007, the Company reformulated its growth strategy and decided to discontinue participating in such industrial minerals business. As of December 31, 2012 and 2011, Zemex LLC only holds shares in subsidiaries with no operation activity.

 

   

Salmueras Sudamericanas S.A. (“Salmueras”) was incorporated in 2011 as a result of the spin-off of the assets and liabilities of the brine project located in the northern region of Peru. As a result of this spin-off and certain contributions made by Quimpac S.A. a minority partner in the brine project, the Company owns 74.9% of the outstanding shares of Salmueras, and Quimpac S.A. owns the remaining 25.1%. In order to develop this project the Company signed a shareholder’s agreement with Quimpac S.A. including some minority protective rights. The Company also has committed to invest US$100,000,000, see note 27. The contributions made by Quimpac S.A. at the incorporation of this subsidiary amounted to S/.4,779,000.

As of December 31, 2012 and 2011, the Company has a direct 100 percent interest in all its subsidiaries, except the following listed below:

 

Subsidiary

     %   

Zemex LLC

     89.53   

Salmueras Sudamericanas S.A.

     74.90   

Fosfatos del Pacífico S.A.

     70.00   

 

F-8


Table of Contents

Notes to the consolidated financial statements (continued)

 

Issuance of new common and investment shares

Common shares -

At the Board of Directors’ Meeting held on January 6, 2012, directors agreed to the issuance of new common shares through a public offering of American Depositary Shares (“ADS”) registered with the SEC. As a consequence, on February 7, 2012 the Company issued 100,000,000 new common shares, equivalent to 20,000,000 ADSs, with a unit price of US$11.5, resulting total proceeds of US$219,540,000 (net of related commissions and costs), equivalent to S/.591,869,000.

On March 2, 2012, the Company issued 11,484,000 additional shares, equivalent to 2,296,800 ADSs pursuant to an overallotment option granted to the underwriters in that offering, resulting total proceeds of US$25,489,000 (net of related commissions and costs), equivalent to S/.68,616,000.

The total outstanding common shares as of the date of this report are 531,461,479 shares, from these 111,484,000 are listed in the New York Stock Exchange and 419,979,479 in Lima Stock Exchange.

The excess of the total proceeds obtained by this transaction in relation to the nominal value of these shares amounted to S/.556,424,000 (net of commissions and other related costs for S/.27,490,000 and tax effects for S/.7,423,000) was recorded in the additional paid-in capital caption of the consolidated statement of changes in equity.

Investment shares -

In March 30, 2012, the Company issued 927,783 investment shares, pursuant to a preemptive right offer in connection with the issuance of ADSs, so the holders of investment shares have rights to maintain their proportional ownership in the share capital of the Company. The total investment shares offer by the Company were 13,574,990, from these only 927,783 were exercised, equivalent to S/.928,000.

The excess of the total proceeds obtained by this issuance of investment shares and the nominal value of these shares amounted to S/.4,767,000 and was recorded in the additional paid-in capital caption of the consolidated statement of changes in equity.

 

2. Summary of significant accounting policies -

 

  2.1 Basis of preparation -

The consolidated financial statements of the Group have been prepared in accordance with International Financial Reporting Standards (IFRS), as issued by the International Accounting Standards Board (IASB).

The consolidated financial statements have been prepared on a historical cost basis, except for available-for-sale financial investments and certain financial instruments, that have been measured at fair value. The consolidated financial statements are presented in Nuevos Soles and all values are rounded to the nearest thousand (S/.000), except when otherwise indicated.

 

F-9


Table of Contents

Notes to the consolidated financial statements (continued)

 

  2.2 Basis of consolidation -

The consolidated financial statements comprise the financial statements of the Company and its subsidiaries.

Subsidiaries are fully consolidated from the date of acquisition, being the date on which the Company obtains control, and continue to be consolidated until the date when such control ceases. The financial statements of the subsidiaries are prepared for the same reporting period as the parent company, using consistent accounting policies. All intra-group balances, transactions, unrealized gains and losses resulting from intra-group transactions and dividends are eliminated in full. Losses within a subsidiary are attributed to the non-controlling interest even if that results in a deficit balance. A change in the ownership interest of a subsidiary, without a loss of control, is accounted for as an equity transaction.

 

F-10


Table of Contents

Notes to the consolidated financial statements (continued)

 

The table presented below shows the summary of the main captions of the audited financial statements of the subsidiaries controlled by the Group as of December 31, 2012, 2011 and 2010:

 

     Assets      Liabilities      Net equity      Net income (loss)  
Entity    2012      2011      2012      2011      2012      2011      2010      2012     2011     2010  
     S/(000)      S/(000)      S/(000)      S/(000)      S/(000)      S/(000)      S/(000)      S/(000)     S/(000)     S/(000)  

Cementos Selva S.A. y Subsidiarias

     252,826         236,205         119,580         64,038         133,246         172,167         109,784         6,179        17,415        10,148   

Distribuidora Norte Pacasmayo S.R.L.

     196,708         162,467         101,871         75,705         94,837         86,762         78,598         10,721        9,600        13,321   

Zemex LLC

     9,731         7,063         —           —           9,731         7,063         6,235         3,859        (553     (823

Empresa de Transmisión Guadalupe S.A.C.

     19,226         18,512         1,130         1,278         18,096         17,234         16,578         862        659        718   

Fosfatos del Pacífico S.A.

     175,613         96,241         5,257         3,801         170,356         92,440         51,121         (9,588     (6,882     (4,155

Salmueras Sudamericanas S.A.

     39,490         22,001         4,692         3,487         34,798         18,514         —           (3,716     (527     —     

 

  2.3 Summary of significant accounting policies -

The following are the significant accounting policies applied by the Group in preparing its consolidated financial statements:

 

  2.3.1 Cash and term deposits -

Cash and cash equivalents presented in the statement of cash flows comprise cash at banks and on hand and short-term deposits with original maturity of three month or less,. In the statement of financial position these amounts includes some long-term deposits with maturities greater than three month.

 

  2.3.2. Financial instruments-initial recognition and subsequent measurement -

 

  (i) Financial Assets -

Initial recognition and measurement -

Financial assets within the scope of IAS 39 are classified as financial assets at fair value through profit or loss, loans and receivables, held-to-maturity investments, available-for-sale financial investments, call options or as derivatives designated as hedging instruments in an effective hedge, as appropriate. The Group determines the classification of its financial assets at initial recognition.

All financial assets are recognized initially at fair value plus, in the case of assets not at fair value through profit or loss, directly attributable transaction costs.

Purchases or sales of financial assets that require delivery of assets within a time frame established by regulation or convention in the marketplace (regular way trades) are recognized on the date trade, i.e., the date that the Group commits to purchase or sell the asset.

The Group’s financial assets include cash and term deposits trade and other receivables, call options, and available-for-sale financial investments.

 

F-11


Table of Contents

Notes to the consolidated financial statements (continued)

 

Subsequent measurement -

The subsequent measurement of financial assets depends on their classification as follows:

Financial assets at fair value through profit or loss -

Financial assets at fair value through profit or loss includes financial assets held for trading and financial assets designated upon initial recognition as at fair value through profit or loss. Financial assets are classified as held for trading if they are acquired for the purpose of selling or repurchasing in the near term. This category includes derivate financial instruments entered into by the Group that are not designated as hedging instruments in hedge relationships as defined by IAS 39. Financial assets at fair value through profit and loss are carried in the consolidated statement of financial position at fair value with changes in fair value recognized in finance income or finance costs in the consolidated income statement.

The Group has not designated any financial assets upon initial recognition as at fair value through profit or loss as of December 31, 2012 and 2011.

Loans and receivables -

Loans and receivables are non-derivative financial assets with fixed or determinable payments that are not quoted in an active market. After initial measurement, such financial assets are subsequently measured at amortized cost using the effective interest rate method (EIR), less impairment. Amortized cost is calculated by taking into account any discount or premium on acquisition and fees or costs that are an integral part of the EIR. The EIR amortization is included in finance income in the consolidated income statement. The losses arising from impairment are recognized in the consolidated income statement in finance costs for loans and in selling and distribution expenses for receivables.

Held-to-maturity investments -

Non-derivative financial assets with fixed or determinable payments and fixed maturities are classified as held-to-maturity when the Group has the positive intention and ability to hold them to maturity. After initial measurement, held-to-maturity investments are measured at amortized cost using the effective interest method, less impairment. Amortized cost is calculated by taking into account any discount or premium on acquisition and fees or costs that are an integral part of the EIR. The EIR amortization is included in finance income in the consolidated income statement. The losses arising from impairment are recognized in the consolidated income statement in finance costs.

The Group did not have any held-to-maturity investments during the years ended as of December 31, 2012 and December 31, 2011.

Available-for-sale financial investments -

Available-for-sale financial investments include equity and debt securities. Equity investments classified as available-for-sale are those, which are neither classified as held for trading nor designated at fair value through profit or loss. After initial measurement, available-for-sale financial investments are measured at fair value with unrealized gains or losses recognized as other comprehensive income in the available-for-sale reserve until investment is derecognized, at which time the cumulative gain or loss is recognized in other operating income, or determined to be impaired, at which time the cumulative loss is reclassified to the consolidated income statement in finance costs and removed from the available-for-sale reserve.

The Group evaluates its available-for-sale financial assets to determine whether the ability and intention to sell them in the near term is still appropriate.

 

F-12


Table of Contents

Notes to the consolidated financial statements (continued)

 

The Group has classified equity securities as available-for-sale financial investments as of December 31, 2012 and 2011.

Derecognition -

A financial asset (or, where applicable a part of a financial asset or part of a group of similar financial assets) is derecognized when:

 

  (i) The rights to receive cash flow from such asset have expired; or

 

  (ii) The Group has transferred its rights to receive cash flows from the asset or has assumed an obligation to pay the received cash flows in full without material delay to a third party under a “pass through” agreement; and either (a) the Group has transferred substantially all the risks and rewards of the asset, or (b) the Group has neither transferred nor retained substantially all of the risks and rewards of the asset, but has transferred control of the asset.

When the Group has transferred its rights to receive cash flows from an asset or has entered into a pass-through arrangement, and has neither transferred nor retained substantially all of the risks and rewards of the asset nor transferred control of it, the asset is recognized to the extent of the Group’s continuing involvement in it.

In that case, the Group also recognizes an associated liability. The transferred asset and the associated liability are measured on a basis that reflects the rights and obligations that the Group has retained.

Continuing involvement that takes the form of a guarantee over the transferred asset is measured at the lower of the original carrying amount of the asset and the maximum amount of consideration that the Group could be required to repay.

 

  (ii) Impairment of financial assets -

The Group assess at each reporting date whether there is any objective evidence that a financial asset or a group of financial assets is impaired. A financial asset or a group of financial assets is deemed to be impaired if, and only if, there is objective evidence of impairment as a result of one or more events that has occurred after the initial recognition of the asset (an incurred “loss event”) and that loss event has an impact on the estimated future cash flows of the financial asset or the group of financial assets that can be reliably estimated. Evidence of impairment may include indications that the debtors or a group of debtors is experiencing significant financial difficulty, default or delinquency in interest or principal payments, the probability that they will enter bankruptcy or other financial reorganization and where observable data indicate that there is a measurable decrease in the estimated future cash flows, such as changes in arrears or economic conditions that correlate with defaults.

Financial assets carried at amortized cost

For financial assets carried at amortized cost, the Group first assesses whether objective evidence of impairment exists individually for financial assets that are individually significant, or collectively for financial assets that are not individually significant. If the Group determines that no objective evidence of impairment exists for an individually assessed financial assets, whether significant or not, it includes the asset in a group of financial assets with similar credit risk characteristics and collectively assesses them for impairment. Assets that are individually assessed for impairment and for which an impairment loss is, or continues to be, recognized are not included in a collective assessment of impairment.

 

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Notes to the consolidated financial statements (continued)

 

If there is objective evidence that an impairment loss has been incurred, the amount of the loss is measured as the difference between the assets carrying amount and the present value of estimated future cash flows (excluding future expected credit losses that have not yet been incurred). The present value of the estimated future cash flows is discounted at the financial asset’s original effective interest rate. If a loan has a variable interest rate, the discount rate for measuring any impairment loss is the current effective interest rate.

The carrying amount of the asset is reduced through the use of an allowance account and the amount of the loss is recognized in the consolidated income statement. Interest income continues to be accrued on the reduced carrying amount and is accrued using the rate of interest used to discount the future cash flows for the purpose of measuring the impairment loss. The interest income is recorded as part of finance income in the consolidated income statement. Loans together with the associated allowance are written off when there is no realistic prospect of future recovery and all collateral has been realized or has been transferred to the Group. If, in a subsequent year, the amount of the estimated impairment loss increases or decreases because of an event occurring after the impairment was recognized, the previously recognized impairment loss is increased or reduced by adjusting the allowance account. If the estimated loss decreases, the reversal shall not result in a carrying amount of the financial asset that exceeds what the amortized cost would have been had the impairment not been recognized at the date the impairment is reversed. If a future write-off is later recovered, the recovery is credited to finance costs in the consolidated income statement.

Available-for-sale financial investments

For available-for-sale financial investments, the Group assess at each reporting date whether there is objective evidence that an investment or a group of investments is impaired.

 

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Notes to the consolidated financial statements (continued)

 

In the case of equity investments classified as available-for-sale, objective evidence would include a significant or prolonged decline in the fair value of the investment below its cost. “Significant” is evaluated against the original cost of the investment and “prolonged” against the period in which the fair value has been below its original cost. Where there is evidence of impairment, the cumulative loss – measured as the difference between the acquisition cost and the current fair value, less any impairment loss on that investment previously recognized in the consolidated income statement – is removed from other comprehensive income and recognized in the consolidated income statement. Impairment losses on equity investment are not reversed through the consolidated income statement; increases in their fair value after impairments are recognized directly in other comprehensive income.

 

  (iii) Financial liabilities -

Initial recognition and measurement -

Financial liabilities within the scope of IAS 39 are classified as financial liabilities at fair value through profit or loss, loans, and borrowings, or as derivatives designated as hedging instruments in an effective hedge, as appropriate. The Group determines the classification of its financial liabilities at initial recognition.

All financial liabilities are recognized initially at fair value and, in the case of loans and borrowings, carried at amortized cost. This includes directly attributable transaction costs.

The Group’s financial liabilities include trade and other payables and interest-bearing loans and borrowings.

Subsequent measurement -

The subsequent measurement of financial liabilities depends on their classification as follows:

Financial liabilities at fair value through profit or loss -

Financial liabilities at fair value through profit or loss include financial liabilities held for trading and financial liabilities designated upon initial recognition as at fair value through profit or loss.

Financial liabilities are classified as held for trading if they are acquired for the purpose of selling in the near term. Gains or losses on liabilities held for trading are recognized in the consolidated income statement.

The Group has not designated any financial liability upon initial recognition as at fair value through profit or loss as of December 31, 2012 and 2011.

 

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Notes to the consolidated financial statements (continued)

 

Loans and borrowings -

After their initial recognition, interest-bearing loans and borrowings are subsequently measured at amortized cost using the effective interest rate method. Gains and loss are recognized in the consolidated income statement when the liabilities are derecognized as well as through the effective interest rate method (EIR) amortization process. Amortized cost is calculated by taking into account any discount or premium on acquisition and fees or costs that are an integral part of the EIR. The EIR amortization is included in finance costs in the consolidated income statement.

Derecognition -

A financial liability is derecognized when the obligation under the liability is discharged or cancelled or expired. When an existing financial liability is replaced by another one from the same lender on substantially different terms, or the terms are substantially modified, such replacement or amendment is treated as a derecognition of the original liability and the recognition of a new liability, and the difference in the respective carrying amount is recognized in the consolidated income statement.

 

  (iv) Offsetting of financial instruments -

Financial assets and financial liabilities are offset and the net amount reported in the consolidated statement of financial position if, and only if, there is a currently enforceable legal right to offset the recognized amounts and there is an intention to settle on a net basis, or to realize the assets and settle the liabilities simultaneously.

 

  (v) Fair value of financial instruments -

The fair value of financial instruments that are traded in active markets at each reporting date is determined by reference to quoted market prices or dealer price quotations (bid price for long positions and ask price for short positions), without any deduction for transaction costs.

For financial instruments not traded in an active market, the fair value is determined using appropriate valuation techniques. Such techniques may include using recent arm’s length market transactions; reference to the current fair value of another instrument that is substantially the same; a discounted cash flow analysis or other valuation models.

An analysis of fair values of financial instruments and further details as to how they are measured are provided in note 29.

 

  (vi) Put and call options over non-controlling interests

IFRS does not have an specific guidance on how to accountant for put and call over non-controlling interests. As a result, the Company has developed the following accounting policies in accordance with IAS 8.

 

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Notes to the consolidated financial statements (continued)

 

Call options

The call option does not give the acquiring entity present access to the benefits associated with that ownership interest, because the option price has not yet been determined or will be the fair value of the shares at the date of exercise. This call option is a financial asset because the terms of the option are not for a fixed amount or exercise price, and it is initially recognized at its fair value, with any subsequent changes in its fair value recognized in profit or loss. If the call option is exercised, the fair value of the option at that date is included as part of the cost of the acquisition of the non-controlling interest.

Put options

Put options granted to non-controlling interests give rise to a financial liability, which are measured at the present value of the redemption amount. On initial recognition of the financial liability, a corresponding reduction is recognized in another component of equity attributable to the parent (and non-controlling interest). Subsequently, the put option is measured in accordance with IAS 39. Changes in the carrying amount of the financial liability are recognized in profit or loss.

Non-controlling interest continues to be recognized within equity until the put is exercised. The carrying amount of non-controlling interest changes due to allocations of profit or loss (and changes in equity) and dividends declared for the reporting period.

 

  2.3.3 Foreign currency translation -

The Group’s consolidated financial statements are presented in Nuevos Soles, which is also the parent company’s functional currency. Each subsidiary determines its own functional currency and items included in financial statements of each subsidiary are measured using that functional currency.

Transactions and balances

Transactions in foreign currencies are initially recorded by the Group at their respective functional currency spot rates at the date the transaction first qualifies for recognition.

Monetary assets and liabilities denominated in foreign currencies are translated at the functional currency spot rates of exchange at the reporting date. Differences arising on settlement or translation of monetary items are recognised in profit or loss.

Non-monetary items that are measured in terms of historical cost in a foreign currency are translated using the exchange rates as of the dates of the initial transactions.

Translation differences from foreign subsidiaries -

The financial statements of the subsidiary Zemex LLC are expressed in United States dollars (its functional currency). On consolidation, the assets and liabilities of this subsidiary are translated into nuevos soles at the rate of exchange prevailing at the reporting date and their income statements are translated at exchange rates prevailing at the dates of the transactions. The exchange differences arising on translation for consolidation are recognized in other comprehensive income. On disposal of a foreign operation, the component of other comprehensive income relating to that particular foreign operation is recognized in profit or loss.

 

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Notes to the consolidated financial statements (continued)

 

  2.3.4 Inventories -

Inventories are valued at the lower of cost and net realizable value. Costs incurred in bringing each product to its present location and conditions are accounted for as follows:

Raw materials

 

   

Purchase cost determined using the weighted average method.

Finished goods and work in progress

 

   

Cost of direct materials and supplies, services provided by third parties, direct labour and a proportion of manufacturing overheads based on normal operating capacity but excluding borrowing costs and exchange currency differences.

Inventory in transit

 

   

Purchase cost.

Net realizable value is the estimated selling price in the ordinary course of business, less estimated cost of completion and the estimated costs necessary to make the sale.

 

  2.3.5 Borrowing costs -

Borrowing costs directly attributable to the acquisition, construction or production of an asset that necessarily takes a substantial period of time to get ready for its intended use or sale are capitalized as part of the cost of the respective assets. All other borrowing costs are expensed in the period they occur. Borrowing costs consist of interest and other costs that an entity incurs in connection with the borrowing of funds.

The Group capitalizes borrowing costs for all eligible assets where construction was commenced since the adoption of IFRS (January 1, 2009). Where funds are borrowed specifically to finance a project, the amount capitalized represents the actual borrowing costs incurred. Where surplus funds are available for a short term out of money borrowed specifically to finance a project, the income generated from the temporary investment of such amounts is also capitalized and deducted from the total capitalized borrowing cost. Where the funds used to finance a project form part of general borrowings, the amount capitalized is calculated using a weighted average of rates applicable to relevant general borrowings of the Group during the period. All other borrowing costs are recognized in the consolidated income statement in the period in which they are incurred.

Borrowing costs for exploration and evaluation assets are recognized in the consolidated statement of income in the period they are incurred.

 

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Notes to the consolidated financial statements (continued)

 

  2.3.6 Leases -

The determination of whether an agreement is, or contains, a lease is based on the substance of the arrangement at the inception date, whether fulfillment of the arrangement is dependent on the use of a specific asset or the arrangement conveys a right to use the asset, even it that right is not explicitly specified in an arrangement.

Finance leases which transfer to the Group substantially all the risks and benefits incidental to ownership of the leased asset, are capitalized at the commencement of the lease at the fair value of the leased property or, if lower, at the present value of the minimum lease payments. Lease payments are apportioned between financial charges and reduction of the lease liability so as to achieve a constant rate of interest on the remaining balance of the liability. Finance charges are recognized in finance costs in the consolidated income statement.

A leased asset is depreciated over the useful life of the asset. However, if there is no reasonable certainty that the Group will obtain ownership by the end of the lease term, the asset is depreciated over the shorter of the estimated useful life of the asset and the lease term.

Operating lease payments are recognized as an operating expense in the consolidated income statement on a straight-line basis over the lease term.

 

  2.3.7 Property, plant and equipment -

Property, plant and equipment is stated at cost, net of accumulated depreciation and/or accumulated impairment losses, if any. Such cost includes the cost of replacing component parts of the property, plant and equipment and borrowing costs for long-term construction projects if the recognition criteria are met. The capitalized value of a finance lease is also included within property, plant and equipment. When significant parts of property, plant and equipment are required to be replaced at intervals, the Group derecognizes the replaced part, and recognizes the new part with its own associated useful life and depreciation. Likewise, when major inspection is performed, its cost is recognized in the carrying amount of the plant and equipment as a replacement if the recognition criteria are satisfied. All other repair and maintenance costs are recognized in profit or loss as incurred. The present value of the expected cost for the decommissioning of an asset after its use is included in the cost of the respective asset if the recognition criteria for a provision are met. Refer to significant accounting judgements, estimates and assumptions (Note 2.3.12) and provisions (Note 13) for further information about the recorded decommissioning provision.

Where an asset or part of an asset that was separately depreciated and is now written off is replaced, and it is probable that future economic benefits associated with the item will flow to the Group through an extended life, the expenditure is capitalized. All other repair and maintenance costs are recognized in the consolidated income statement as incurred.

 

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Notes to the consolidated financial statements (continued)

 

Depreciation of assets used in the mining production process is charged to cost of production on a units of production (UOP) basis using proved reserves, except in the case of assets whose useful life is shorter than the life of mine, in which case the straight-line method is applied. Other assets are depreciated on a straight-line-basis over the estimated useful lives of such assets as follows:

 

     Years

Buildings and other constructions:

  

Administrative facilities

   Between 35 and 48

Main production structures

   Between 30 and 49

Minor production structures

   Between 20 and 35

Machinery and equipment:

  

Mills and horizontal furnaces

   Between 42 and 49

Vertical furnaces, crushers and grinders

   Between 23 and 36

Electricity facilities and other minors

   Between 12 and 35

Furniture and fixtures

   10

Transportation units:

  

Heavy units

   Between 11 and 21

Light units

   Between 8 and 11

Computer equipment

   4

Tools

   Between 5 and 10

The asset’s residual value, useful lives and methods of depreciation/amortization are reviewed at each reporting period, and adjusted prospectively if appropriate.

An item of property, plant and equipment and any significant part initially recognized is derecognized upon disposal or when no future economic benefits are expected from its use or disposal. Any gain or loss arising on derecognition of the asset (calculated as the difference between the net disposal proceeds and the carrying amount of the asset) is included in the consolidated income statement when the asset is derecognized.

 

  2.3.8 Mining concessions -

Mining concessions correspond to the exploration rights in areas of interest acquired in previous years. Mining concessions are stated at cost, net of accumulated amortization and/or accumulated impairment losses, if any, and are presented within the property, plant and equipment caption. Those mining concessions are amortized starting from the production phase following the units-of-production method based on proved reserves to which they relate. The unit-of-production rate for the amortization of mining concessions takes into account expenditures incurred to the date of the calculation. In the event the Group abandons the concession, the costs associated are written-off in the consolidated income statement.

 

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Notes to the consolidated financial statements (continued)

 

  2.3.9 Mine development costs and stripping costs

Mine development costs

Mine development costs incurred are stated at cost. Mine development costs are, upon commencement of the production phase, presented net of accumulated amortization and/or accumulated impairment losses, if any, and are presented within the property, plant and equipment caption. The amortization is calculated using the unit of-production method based on proved reserves to which they relate. The unit-of-production rate for the amortization of mine development costs takes into account expenditures incurred to the date of the calculation. Expenditures that increase significantly the economic reserves in the mining unit under exploitation are capitalized.

Stripping costs

Stripping costs incurred in the development of a mine before production commences are capitalized as part of mine development costs and subsequently amortized over the life of the mine on a units-of-production basis, using the proved reserves.

Stripping costs incurred subsequently during the production phase of its operation are recorded as part of the cost of production.

 

  2.3.10 Exploration and evaluation assets -

Once the legal right to explore has been acquired, exploration and evaluation expenditures are charged to consolidated income statement, unless management concludes that a future economic benefit is more likely than not to be realized. These costs include materials and fuel used, surveying costs, drilling costs and payments made to contractors.

In evaluating if expenditures meet the criteria to be capitalized, several different sources of information are used. The information that is used to determine the probability of future benefits depends on the extent of exploration and evaluation that has been performed.

No amortization is charged during the exploration and evaluation phase.

 

  2.3.11 Ore reserve and resource estimates -

Ore reserves are estimates of the amount of ore that can be economically and legally extracted from the Group’s mining properties and concessions. The Group estimates its ore reserves and mineral resources, based on information compiled by appropriately qualified persons relating to the geological data on the size, depth and shape of the ore body, and requires complex geological judgments to interpret the data. The estimation of recoverable reserves is based upon factors such as estimates of foreign exchange rates, commodity prices, future capital requirements, and production costs along with geological assumptions and judgments made in estimating the size and grade of the ore body. Changes in the reserve or resource estimates may impact upon the carrying value of exploration and evaluation assets, property, plant and equipment, provision for rehabilitation and depreciation and amortization charges.

 

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Notes to the consolidated financial statements (continued)

 

  2.3.12 Impairment of non-financial assets -

The Group assesses at each reporting date whether there is an indication that an asset may be impaired. If any indication exists, or when annual impairment testing for an asset is required, the Group estimates the asset’s recoverable amount. An asset’s recoverable amount is the higher of an asset’s or cash-generating unit’s (CGU) fair value less costs to sell and its value in use and is determined for an individual asset, unless the asset does not generate cash inflows that are largely independent of those from other assets or groups of assets.

Where the carrying amount of an asset of CGU exceeds its recoverable amount, the asset is considered impaired and is written down to its recoverable amount. In assessing value in use, the estimated future cash flows are discounted to their present value using a pre-tax discount rate that reflects current market assessments of the time value of money and the risks specific to the asset.

In determining fair value less costs to sell, recent market transactions are taken into account, if available. If no such transactions can be identified, an appropriate valuation model is used. These calculations are corroborated by valuation multiples, quoted share prices for publicly traded companies or other available fair value indicators.

Impairment losses of continuing operations, including impairment on inventories, are recognized in the consolidated income statement in those expense categories consistent with the function of the impaired asset.

An assessment is made at each reporting date as to whether there is any indication that previously recognized impairment losses may no longer exist or may have decreased. If such indication exists, the Group estimates the asset’s or cash-generating unit’s recoverable amount. A previously recognized impairment loss is reversed only if there has been a change in the assumptions used to determine the asset’s recoverable amount since the last impairment loss was recognized. The reversal is limited so that the carrying amount of the asset does not exceed its recoverable amount, nor exceed the carrying amount that would have been determined, net of depreciation, had no impairment loss been recognized for the asset in prior years. Such reversal is recognized in the consolidated income statement. The following criteria are also applied in assessing impairment of specific assets:

Exploration and evaluation assets are tested for impairment annually as of December 31, either individually or at the cash-generating unit level, as appropriate and when circumstances indicate that the carrying value may be impaired.

 

  2.3.13 Provisions -

General

Provisions are recognized when the Group has a present obligation (legal or constructive) as a result of a past event, it is probable that an outflow of resources embodying economic benefits will be required to settle the obligation and a reliable estimate can be made of the amount of the obligation. Where the Group expects some or all of a provision to be reimbursed, for example under an insurance contract, the reimbursement is recognized as a separate asset but only when the reimbursement is virtually certain. The expense relating to any provision is presented in profit or loss net of any reimbursement. If the effect of the time value of money is material, provisions are discounted using a current pre-tax rate that reflects where appropriate, the risks specific to the liability. Where discounting is used, the increase in the provision due to the passage of time is recognized as finance cost in the consolidated income statement.

Rehabilitation provision

The Group records the present value of estimated costs of legal and constructive obligations required to restore operating locations in the period in which the obligation is incurred. Rehabilitation costs are provided at the present value of expected costs to settle the obligation using estimated cash flows and are recognized as part of the cost of that particular

 

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Notes to the consolidated financial statements (continued)

 

asset. The cash flows are discounted at a current pre-tax rate that reflects the risk specific to the rehabilitation provision. The unwinding of the discount is expensed as incurred and recognized in the consolidated income statement as a finance cost. The estimated future costs of rehabilitation are reviewed annually and adjusted as appropriate. Changes in the estimated future costs or in the discount rate applied are added to or deducted from the cost of the asset.

 

  2.3.14 Employees benefits -

The Group has short-term obligations for employee benefits including salaries, severance contributions, legal bonuses, performance bonuses and profit sharing. These obligations are monthly recorded, on accrual basis.

Additionally, the Group has a long-term incentive plan for key management. This benefit is settled in cash, measured on the salary of each officer and upon fulfilling certain conditions such as years of experience within the Group and permanency. According to IAS 19 “Employee benefits”, the Group recognizes the long-term obligation at its present value at the end of the reporting period using the projected credit unit method. To calculate the present value of these long-term obligations the Group uses a current market discount rate at the date of the consolidated financial statements. This liability is annually reviewed on the date of the consolidated financial statements, and the accrual updates and the effect of changes in discount rates are recognized in the consolidated income statement, until the liability is extinguished.

 

  2.3.15 Revenue recognition -

Revenue is recognized to the extent it is probable that the economic benefits will flow to the Group and the revenue can be reliably measured, regardless of when the payment is being made. Revenue is measured at the fair value of the consideration received or receivable, taking into account contractually defined terms of payment and excluding taxes or duty. The Group assesses its revenue arrangements against specific criteria in order to determine if it is acting as principal or agent.

The Group has concluded that it is acting as a principal in all of its revenue arrangements. The following specific recognition criteria must be also met before revenue is recognized:

Sales of goods -

Revenue from sales of goods is recognized when the significant risks and rewards of ownership have been transferred to the buyer, on delivery of the goods.

Operating lease income -

Income from operating lease of mining concessions was recognized on a monthly accrual basis during the term of the lease,and is calculated based on market prices, which are applied to monthly copper production. Revenues from lease of mining concessions were generated until March 31, 2010, when the subsidiary Corianta S.A. completed the sale of the “Mina Raul” concession to Compañía Minera Condestable S.A.A. See note 22.

Interest income -

The revenue is recognized when the interest accrues using the effective interest rate. Interest income is included in finance income in the consolidated income statement.

 

  2.3.16 Taxes -

Current income tax -

Current income tax assets and liabilities are measured at the amount expected to be recovered from or paid to the taxation authorities. The tax rates and tax laws used to compute the amount are those that are enacted or substantively enacted, at the reporting date in Peru, where the Group operates and generates taxable income. Current income tax

 

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Notes to the consolidated financial statements (continued)

 

relating to items recognized directly in equity is recognized in equity and not in the consolidated income statement. Management periodically evaluates positions taken in the tax returns with respect to situations in which applicable tax regulations are subject to interpretation and establishes provisions where appropriate.

Deferred tax -

Deferred tax is provided using the liability method on temporary differences at the reporting date between the tax bases of assets and liabilities and their carrying amounts for financial reporting purposes.

Deferred tax liabilities are recognized for all taxable temporary differences, except in respect of taxable temporary differences associated with investments in subsidiaries and associates, where the timing of the reversal of the temporary differences can be controlled and it is probable that the temporary differences will not reverse in the foreseeable future.

Deferred tax assets are recognized for all deductible temporary differences, carry forward of unused tax credits and unused tax losses, to the extent that it is probable that taxable profit will be available against which the deductible temporary differences, and the carry forward of unused tax credits and unused tax losses can be utilized, except in respect of deductible temporary differences associated with investments in subsidiaries and associates, where deferred assets are recognized only to the extent that it is probable that the temporary differences will reverse in the foreseeable future and taxable profit will be available against which the temporary differences can be utilized.

 

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Notes to the consolidated financial statements (continued)

 

The carrying amount of deferred tax assets is reviewed at each reporting date and reduced to the extent that it is no longer probable that sufficient taxable profit will be available to allow all or part of the deferred tax asset to be utilized. Unrecognized deferred tax assets are reassessed at each reporting date and are recognized to the extent that it has become probable that future taxable profits will allow the deferred tax asset to be recovered.

Deferred tax assets and liabilities are measured at the tax rates that are expected to apply in the year when the asset is realized or the liability is settled, based on tax rates (and tax laws) that have been enacted or substantively enacted at the reporting date.

Deferred tax items are recognized in correlation to the underlying transaction either in other comprehensive income or directly in equity.

Deferred tax assets and deferred tax liabilities are offset if a legally enforceable right exists to set off current tax assets against current income tax liabilities and the deferred taxes relate to the same taxable entity and the same taxation authority.

Mining royalties -

Mining royalties are accounted for under IAS 12 when they have the characteristics of an income tax. This is considered to be the case when they are imposed under government authority and the amount payable is based on taxable income – rather than based on quantity produced or as a percentage of revenue – after adjustment for temporary differences. For such arrangements, current and deferred tax is provided on the same basis as described above for other forms of taxation. Obligations arising from royalty arrangements that do not satisfy these criteria are recognized as current provisions and included in results of the year.

On September 29, 2011, the Peruvian government amended the Royalty Mining Law to increase taxation on metallic and non-metallic mining activities. The amendment became effective as of October 1, 2011. According to this law, the royalty for the exploitation of metallic and non-metallic resources is payable on a quarterly basis in an amount equal to the greater of (i) an amount determined in accordance with a statutory scale of tax rates based on operating profit margin that is applied to the operating profit, as adjusted by certain items, and (ii) 1% of net sales, in each case during the applicable quarter. Mining royalty payments will be deductible for income tax purposes in the fiscal year in which such payments are made. In connection with this, the mining royalty portion obtained from operating margin is treated under IAS 12 and the remaining royalty, obtained from sales, is registered as expense of the year.

Sales tax -

Revenues, expenses and assets are recognized net of the amount of sales tax, except:

 

  (i) Where the sales tax incurred on a purchase of assets or services is not recoverable from the taxation authority, in which case the sales tax is recognized as part of the cost of acquisition of the asset or as part of the expense item as applicable.

 

  (ii) Receivables and payables are stated with the amount of sales tax included.

The net amount of sales tax recoverable from, or payable to, the taxation authority is included as part of receivables or payables in the consolidated statement of financial position.

 

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Notes to the consolidated financial statements (continued)

 

  2.3.17 Treasury shares -

Own equity instruments which are reacquired (treasury shares) are recognized at cost and deducted from equity. No gain or loss is recognized in the consolidated income statement on the purchase, sale, issue or cancellation of the Group’s own equity instruments. Any difference between carrying amount and the consideration, if reissued, is recognized in capital stock. Voting rights related to treasury shares are nullified for the Company and no dividends are allocated to them. The Company had common shares in treasury through a subsidiary until 2012, when these shares were disposed, see note 16(c).

 

  2.3.18 New amended standards and interpretations

The accounting policies adopted are consistent with those of the previous financial year, except for the following amendments to IFRS effective as of 1 January 2012:

 

   

IAS 12 Income Taxes (Amendment) – Deferred Taxes: Recovery of Underlying Assets

 

   

IFRS 1 First-Time Adoption of International Financial Reporting Standards (Amendment) – Severe Hyperinflation and Removal of Fixed Dates for First-Time Adopters

 

   

IFRS 7 Financial Instruments : Disclosures – Enhanced Derecognition Disclosure Requirements

The adoption of the standards or interpretations is described below:

 

   

IAS 12 Income Taxes (Amendment) – Deferred Taxes: Recovery of Underlying Assets

The amendment clarified the determination of deferred tax on investment property measured at fair value and introduces a rebuttable presumption that deferred tax on investment property measured using the fair value model in IAS 40 should be determined on the basis that its carrying amount will be recovered through sale. It includes the requirement that deferred tax on non-depreciable assets that are measured using the revaluation model in IAS 16 should always be measured on a sale basis. The amendment is effective for annual periods beginning on or after January, 1 2012 and has been no effect on the Group’s financial position, performance or its disclosures.

 

   

IFRS 1 First-Time Adoption of International Financial Reporting Standards (Amendment) – Severe Hyperinflation and Removal of Fixed Dates for First-Time Adopters

The IASB provided guidance on how an entity should resume presenting IFRS financial statements when its functional currency ceases to be subject to hyperinflation. The amendment is effective for annual periods beginning on or after July, 1 2011. The amendment had no impact to the Group.

 

   

IFRS 7 Financial Instruments: Disclosures — Enhanced Derecognition Disclosure Requirements

The amendment requires additional disclosure about financial assets that have been transferred but not derecognised to enable the user of the Group’s financial statements to understand the relationship with those assets that have not been derecognised and their associated liabilities. In addition, the amendment requires disclosures about the entity’s continuing involvement in derecognised assets to enable the users to evaluate the nature of, and risks associated with, such involvement. The amendment is effective for annual periods beginning on or after July,1 2011. The Group does not have any assets with these characteristics so there has been no effect on the presentation of its financial statements.

 

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Notes to the consolidated financial statements (continued)

 

  2.3.19 Modifications to the consolidated financial statements of prior year

As of December 31, 2012, the Company made the following reclassifications in its consolidated financial statements for the year ended December 31, 2011:

 

   

On the consolidated statement of cash flow, S/.118,630,000 cash proceeds from the sale of 30% ownership in Fosfatos del Pacífico S.A. (see note 1), were reclassified from cash flows from investing activities to cash flows related to financing activities.

 

   

On the consolidated statement of financial position, S/.37,217,000 related to deferred income tax asset caption was reclassified to and netted against “deferred income tax liabilities”, to provide a fair presentation of these captions according to IAS 12 that states the deferred tax assets and liabilities should be offset if, and only if, the entity has a legally enforceable right to set off current tax assets and liabilities and the deferred tax assets and liabilities concerned relate to income taxes raised by the same taxation authority.

 

3. Significant accounting judgments, estimates and assumptions

Many of the amounts included in the consolidated financial statements involve the use of judgment and/or estimation. These judgments and estimates are based on management’s best knowledge of the relevant facts and circumstances, having regard to prior experience, but actual results may differ from the amounts included in the consolidated financial statements. Information about such judgments and estimates are contained in the accounting policies and/or the notes to the financial statements. The key areas are summarized below:

 

   

Determination of useful lives of assets for depreciation and amortization purposes – notes 2.3.7, 2.3.8 and 2.3.9.

 

   

Recognition of exploration and evaluation assets – note 2.3.10.

 

   

Determination of ore reserves and resources - note 2.3.11.

 

   

Review of asset carrying values and impairment charges – note 2.3.12 and note 10.

 

   

Review of the amount and timing of rehabilitation costs – note 2.3.13 and note 13.

 

   

Income tax – note 2.3.16 and note 15.

 

F-27


Table of Contents

Notes to the consolidated financial statements (continued)

 

4. Standards issued but not yet effective

Certain new standards and interpretations to existing standards have been published and are mandatory for the Group’s accounting periods beginning on or after January 1, 2013 or later periods and have not been adopted early by the Group. Those that are applicable to the Group are as follows:

 

   

IAS 1 Presentation of Items of Other Comprehensive Income – Amendments to IAS 1

The amendments to IAS 1 change the grouping of items presented in other comprehensive income (OCI). Items that could be reclassified (or ‘recycled’) to profit or loss at a future point in time (for example, net gain on hedge of net investment, exchange differences on translation of foreign operations, net movement on cash flow hedges and net loss or gain on available-for-sale financial assets) would be presented separately from items that will never be reclassified (for example, actuarial gains and losses on defined benefit plans and revaluation of land and buildings). The amendment affects presentation only and has no impact on the Group’s financial position or performance.

 

   

IAS 19 Employee Benefits (Revised)

The IASB has issued numerous amendments to IAS 19. These range from fundamental changes such as removing the corridor mechanism and the concept of expected returns on plan assets to simple clarifications and re-wording. The amendment becomes effective for annual periods beginning on or after January 1, 2013.

 

   

IAS 32 Offsetting Financial Assets and Financial Liabilities — Amendments to IAS 32

These amendments clarify the meaning of “currently has a legally enforceable right to set-off”. The amendments also clarify the application of the IAS 32 offsetting criteria to settlement systems (such as central clearing house systems) which apply gross settlement mechanisms that are not simultaneous. These amendments are not expected to impact the Group’s financial position or performance and become effective for annual periods beginning on or after January 1, 2014.

 

   

IFRS 7 Disclosures — Offsetting Financial Assets and Financial Liabilities — Amendments to IFRS 7

These amendments require an entity to disclose information about rights to set-off and related arrangements (e.g., collateral agreements). The disclosures would provide users with information that is useful in evaluating the effect of netting arrangements on an entity’s financial position. These amendments will not impact the Group’s financial position or performance and become effective for annual periods beginning on or after January 1, 2013.

 

   

IFRS 9 Financial Instruments: Classification and Measurement

IFRS 9, as issued, reflects the first phase of the IASB’s work on the replacement of IAS 39 and applies to classification and measurement of financial assets and financial liabilities as defined in IAS 39. The standard was initially effective for annual periods beginning on or after January 1, 2013, but Amendments to IFRS 9 Mandatory Effective Date of IFRS 9 and Transition Disclosures, issued in December 2011, moved the mandatory effective date to January 1, 2015. In subsequent phases, the IASB will address hedge accounting and impairment of financial assets. The adoption of the first phase of IFRS 9 will have an effect on the classification and measurement of the Group’s financial assets, but will not have an impact on classification and measurements of financial liabilities. The Group will quantify the effect in conjunction with the other phases, when the final standard including all phases is issued.

 

   

IFRS 10 Consolidated Financial Statements, IAS 27 Separate Financial Statements

IFRS 10 replaces the portion of IAS 27 Consolidated and Separate Financial Statements that addresses the accounting for consolidated financial statements. It also addresses the issues raised in SIC-12 Consolidation — Special Purpose Entities.

 

F-28


Table of Contents

Notes to the consolidated financial statements (continued)

 

IFRS 10 establishes a single control model that applies to all entities including special purpose entities. The changes introduced by IFRS 10 will require management to exercise significant judgement to determine which entities are controlled and therefore are required to be consolidated by a parent, compared with the requirements that were in IAS 27. Based on the preliminary analyses performed, IFRS 10 is not expected to have any impact on the currently held investments of the Group. This standard becomes effective for annual periods beginning on or after January 1, 2013.

 

   

IFRS 12 Disclosure of Interests in Other Entities

IFRS 12 includes all of the disclosures that were previously in IAS 27 related to consolidated financial statements, as well as all of the disclosures that were previously included in IAS 31 and IAS 28. These disclosures relate to an entity’s interests in subsidiaries, joint arrangements, associates and structured entities. This standard becomes effective for annual periods beginning on or after January 1, 2013.

 

   

IFRS 13 Fair Value Measurement

IFRS 13 establishes a single source of guidance under IFRS for all fair value measurements. IFRS 13 does not change when an entity is required to use fair value, but rather provides guidance on how to measure fair value under IFRS when fair value is required or permitted. The Group is currently assessing the impact that this standard will have on the financial position and performance, but based on the preliminary analyses, no material impact is expected. This standard becomes effective for annual periods beginning on or after January 1, 2013.

Annual Improvements May 2012

These improvements will not have an impact on the Group, but include:

 

   

IFRS 1 First-time Adoption of International Financial Reporting Standards

 

   

IAS 1 Presentation of Financial Statements

 

   

IAS 16 Property Plant and Equipment

 

   

IAS 32 Financial Instruments, Presentation

 

   

IAS 34 Interim Financial Reporting

 

F-29


Table of Contents

Notes to the consolidated financial statements (continued)

 

5. Transactions in foreign currency

Transactions in foreign currency take place at the open-market exchange rates published by the Superintendent of Banks, Insurance and Pension Funds Administration. As of December 31, 2012, the exchange rates for transactions in United States dollars, published by this institution, were S/.2.549 for purchase and S/.2.551 for sale (S/.2.695 for purchase and S/.2.697 for sale as of December 31, 2011).

As of December 31, 2012 and 2011, the Group had the following assets and liabilities in United States dollars:

 

     2012      2011  
     US$(000)      US$(000)  

Assets

     

Cash and term deposits

     10,677         50,591   

Trade and other receivables

     17,920         9,124   
  

 

 

    

 

 

 
     28,597         59,715   
  

 

 

    

 

 

 

Liabilities

     

Trade and other payables

     22,432         20,092   

Interest-bearing loans and borrowings

     —           22,129   
  

 

 

    

 

 

 
     22,432         42,221   
  

 

 

    

 

 

 

Net asset position

     6,165         17,494   
  

 

 

    

 

 

 

As of December 31, 2012 and 2011, the Company had no financial instruments to hedge its foreign exchange risk.

During 2012 the net loss originated by assets and liabilities in foreign currency was approximately S/.736,000 (net gain of S/.1,476,000 and S/.2,568,000 during 2011 and 2010, respectively) and it is presented in “(loss) gain from exchange difference, net” caption in the consolidated income statements.

 

F-30


Table of Contents

Notes to the consolidated financial statements (continued)

 

6. Cash and term deposits

 

  (a) This caption was made up as follows:

 

     2012      2011  
     S/.(000)      S/.(000)  

Cash on hand

     1,973         2,786   

Cash at bank (b)

     37,870         228,150   

Short-term deposits (c)

     29,992         132,343   
  

 

 

    

 

 

 

Cash balances included in the consolidated statements of cash flows

     69,835         363,279   

Time deposits with original maturity greater than 90 days (c)

     403,950         —     
  

 

 

    

 

 

 
     473,785         363,279   
  

 

 

    

 

 

 

 

  (b) Cash at banks is denominated in local and foreign currencies, is deposited in local banks and is freely available. The demand deposits interest yield based on daily bank deposit rates. As of December 31, 2011 these bank accounts included approximately US$46,100,000 (equivalent to S/.124,399,000), as a result of the sale of minority interests of the subsidiary Fosfatos del Pacífico S.A., see note 1.

 

  (c) As of December 31, 2012 and 2011, the time deposits held in local banks were freely available and earned interest at the respective short-term deposits rates. These time deposits, with original maturities of less than three months, were collected in January 2013 and 2012, respectively. As of December 31, 2012, the long-term deposits were held in local banks, were freely available and earned interest at the respective market rates, and have original maturities of 18 months. As of December 31, 2012 the long-term deposits generated interests for S/.20,760,000 approximately, from this amount S/.15,812,000 are pending of collection, see note 7(a).

These short and long-term deposits include part of the proceeds obtained through the issuance of new common shares, see note 1, and S/.202,200,000 related to a loan received in December 31, 2011.

 

F-31


Table of Contents

Notes to the consolidated financial statements (continued)

 

7. Trade and other receivables

 

  (a) This caption was made up as follows:

 

     Current     Non-current  
     2012     2011     2012      2011  
     S/.(000)     S/.(000)     S/.(000)      S/.(000)  

Trade receivables (b)

     41,388        41,802        —           —     

Interests receivables, note 6(c)

     15,812        —          —           —     

Funds restricted to tax’ payments

     790        —          —           —     

Loans to employees

     379        427        4         117   

Accounts receivable from Parent company and affiliates, note 25

     147        422        —           —     

Other accounts receivable

     8,742        2,376        966         1,050   

Allowance for doubtful accounts (e)

     (168     (63     —           —     
  

 

 

   

 

 

   

 

 

    

 

 

 

Financial assets classified as receivables (f)

     67,090        44,964        970         1,167   
  

 

 

   

 

 

   

 

 

    

 

 

 

Value-added tax credit (c)

     2,305        31,780        25,170         18,009   

Tax refund receivable (d)

     —          1,633        9,970         9,970   
  

 

 

   

 

 

   

 

 

    

 

 

 

Non-financial assets classified as receivables

     2,305        33,413        35,140         27,979   
  

 

 

   

 

 

   

 

 

    

 

 

 
     69,395        78,377        36,110         29,146   
  

 

 

   

 

 

   

 

 

    

 

 

 

 

  (b) Trade account receivables are interest bearing and are generally 30-90 day terms.

 

  (c) The value-added tax credit is mainly related to the activities of Fosfatos del Pacífico S.A. According to the Peruvian current tax rules, the Company has the right to compensate this credit against the value-added tax to be generated on the future sales of these entities. In addition, this kind of tax credit never expires. From the total amount, S/.20,619,000 will be mainly recovered from 2016 and thereafter through the value-added tax to be generated from the future sales of phosphates since 2016.

 

  (d) As of December 31, 2012 and 2011, the Group had value-added tax refund receivables related to the operations of Dinoselva Iquitos S.A.C. of S/.9,970,000. These tax refund receivables are value-added tax credits originated from purchases made from 2005 to 2007 in the northeast region of Peru. The Group has a formal disagreement with the Peruvian tax authorities in connection with these refunds. In the opinion of Group’s legal advisors, the Group has strong basis to recover these tax refunds, however, they consider that such recovery will occur in the long-term, considering the long time that this kind of procedures last due to all instances and formal processes that have to be completed.

 

F-32


Table of Contents

Notes to the consolidated financial statements (continued)

 

  (e) The movement of the allowance for doubtful accounts is as follows:

 

     2012      2011     2010  
     S/.(000)      S/.(000)     S/.(000)  

Opening balance

     63         1,525        1,525   

Additions

     105         —          —     

Write-off

     —           (1,462     —     
  

 

 

    

 

 

   

 

 

 

Ending balance

     168         63        1,525   
  

 

 

    

 

 

   

 

 

 

 

  (f) The ageing analysis of trade and other accounts receivable as of December 31, 2012 and 2011, is as follows:

 

                   Past due but not impaired  
     Total      Neither
past due
nor
impaired
     < 30
days
     30-60
days
     61-90
days
     91-120
days
     > 120
days
 
     S/.(000)      S/.(000)      S/.(000)      S/.(000)      S/.(000)      S/.(000)      S/.(000)  

2012

     68,060         54,056         7,652         1,232         451         301         4,368   

2011

     46,131         5,799         26,089         7,490         3,105         1,307         2,341   

 

8. Inventories

 

  (a) This caption is made up as follows:

 

     2012     2011  
     S/.(000)     S/.(000)  

Goods and finished products

     23,924        22,209   

Work in progress

     56,018        52,642   

Raw materials

     73,938        21,730   

Packages and packing

     1,031        685   

Fuel and carbon

     54,074        49,277   

Spare parts and supplies

     66,587        54,626   

Inventory in transit

     10,368        9,446   
  

 

 

   

 

 

 
     285,940        210,615   

Less - Provision for inventory obsolescence and net realizable value (b)

     (7,791     (4,513
  

 

 

   

 

 

 
     278,149        206,102   
  

 

 

   

 

 

 

 

F-33


Table of Contents

Notes to the consolidated financial statements (continued)

 

  (b) Movement in the provision for inventory obsolescence and net realizable value is set forth below:

 

     2012      2011     2010  
     S/.(000)      S/.(000)     S/.(000)  

Opening balance

     4,513         4,857        13,353   

Charge for the year

     3,278         —          381   

Recoveries

     —           —          (8,549

Write-offs

     —           (344     (328
  

 

 

    

 

 

   

 

 

 

Final balance

     7,791         4,513        4,857   
  

 

 

    

 

 

   

 

 

 

During 2012, S/.3,278,000 was recognized as an expense for inventories carried at net realizable value and inventory obsolescence. During 2010, the reversal of the provision for inventory obsolescence and impairment arose from an increase in net realizable value of zinc calcine inventory during 2010, in line with the increase of the international prices of zinc during this year.

 

9. Available–for-sale financial investments

 

  (a) Movement in available-for-sales financial investments is as follow:

 

     2012      2011  
     S/.(000)      S/.(000)  

Beginning balance

     22,074         30,813   

Fair value change recorded in other comprehensive income

     12,813         (8,739
  

 

 

    

 

 

 

Ending balance

     34,887         22,074   
  

 

 

    

 

 

 

 

  (b) Available-for-sale financial investments include the following:

 

     2012  
     Cost      Unrealized gains      Fair value  
     S/.(000)      S/.(000)      S/.(000)  

Equity securities – listed Peruvian company

     450         381         831   

Equity securities – unlisted Peruvian company

     8,399         25,657         34,056   
  

 

 

    

 

 

    

 

 

 

Total

     8,849         26,038         34,887   
  

 

 

    

 

 

    

 

 

 

 

F-34


Table of Contents

Notes to the consolidated financial statements (continued)

 

     2011  
     Cost      Unrealized gains      Fair value  
     S/.(000)      S/.(000)      S/.(000)  

Equity securities – listed Peruvian company

     450         76         526   

Equity securities – unlisted Peruvian company

     8,399         13,149         21,548   
  

 

 

    

 

 

    

 

 

 

Total

     8,849         13,225         22,074   
  

 

 

    

 

 

    

 

 

 

During the period there were no reclassifications between quoted and unquoted investments.

The fair value of the listed shares is determined by reference to published price quotations in an active market. Union Andina de Cementos S.A.A. (previously known as Cementos Lima S.A.) shares are publicly traded in Lima Stock Exchange (LSE).

Sindicato de Inversiones y Administración S.A. (SIA) is the main shareholder of Union Andina de Cementos S.A.A. with a participation of 48.99% in its capital stock as of December 31, 2012 (68.03% as of December 31, 2011). The only significant asset of SIA is its investment in Union Andina de Cementos S.A.A. (which represents the 99% of the SIA´s total assets). SIA has no operations.

As of December 31, 2012 the fair value of SIA’s unlisted shares is calculated applying its 48.99% interest to the fair value of Union Andina de Cementos S.A.A.´s shares, which are listed in the Lima Stock Exchange (68.03% as of December 31, 2011).

 

  (c) The breakdown of the investments in equity securities held for the years 2012 and 2011, is as follows (number of shares):

 

Unión Andina de Cementos S.A.A. (*)

     256,624   

Sindicato de Inversiones y Administración S.A. (SIA) (**)

     4,825   

 

(*) Represents 0.016% of its common shares (0.022% as of December 31, 2011).
(**) Represents 1.21% of its common shares.

 

F-35


Table of Contents

Notes to the consolidated financial statements (continued)

 

The movement of the number of shares of Union Andina de Cementos S.A.A. as of December 31, 2012 and 2011 is as follows:

 

     2012      2011  

Beginning balance

     256,624         18,500   

Increase of shares due to changes in nominal amount (from S/.10 to S/.1 per share)

     —           166,500   

Issue of shares by capitalizations

     —           71,624   
  

 

 

    

 

 

 

Ending balance

     256,624         256,624   
  

 

 

    

 

 

 

These changes in the number of outstanding shares of Union Andina de Cementos S.A.A. has not represent any change in the Group’s share of that investment.

 

F-36


Table of Contents

Notes to the consolidated financial statements (continued)

 

10. Property, plant and equipment

 

  (a) The composition and movement in this caption to the date of the consolidated statement of financial position is presented below:

 

    Mining
concessions (b)
    Mine
development
costs (b)
    Land     Buildings
and other
construction
    Machinery,
equipment
and related
spare parts
    Furniture
and
accessories
    Transportation
units
    Computer
equipment
and tools
    Mine
rehabilitation
costs
   

Works in
progress
and units

in transit

    Total  
    S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)  

Cost

                     

As of January 1, 2011

    62,134        30,283        190,435        211,607        575,934        26,765        79,912        30,725        4,575        51,418        1,263,788   

Additions

    11,400        4,984        9,018        713        39,600        443        21,574        4,249        —          148,617        240,598   

Disposals

    (61     —          (97     —          (537     (61     (4,390     (150     —          (386     (5,682

Transfers

    —          —          —          (781     4,285        4        1,056        (1     —          (4,563     —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

As of December 31, 2011

    73,473        35,267        199,356        211,539        619,282        27,151        98,152        34,823        4,575        195,086        1,498,704   

Additions

    105        21,562        14,714        1,127        20,753        1,136        10,428        4,316        —          169,908        244,049   

Capitalized interests (d)

    —          —          —          —          —          —          —          —          —          4,145        4,145   

Disposals

    —          —          (2,228     —          (687     —          —          (10     —          —          (2,925

Transfers

    9,523        —          —          15,687        8,554        —          4        72        —          (33,840     —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

As of December 31, 2012

    83,101        56,829        211,842        228,353        647,902        28,287        108,584        39,201        4,575        335,299        1,743,973   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Accumulated depreciation

                     

As of January 1, 2011

    13,285        6,353        —          18,447        52,595        23,902        21,860        24,255        1,096        —          161,793   

Additions

    107        1,326        —          6,063        29,575        880        6,401        2,337        253        —          46,942   

Disposals

    —          —          —          —          (155     (1,999     (1,125     (147     —          —          (3,426

Transfers

    —          —          —          (15     15        —          —          —          —          —          —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

As of December 31, 2011

    13,392        7,679        —          24,495        82,030        22,783        27,136        26,445        1,349        —          205,309   

Additions

    60        —          —          6,956        30,292        446        7,666        2,534        —          —          47,954   

Disposals

    —          —          —          —          (119     —          —          —          —          —          (119
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

As of December 31, 2012

    13,452        7,679        —          31,451        112,203        23,229        34,802        28,979        1,349        —          253,144   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Impairment mining assets (b)

    44,103        21,370        257        17,069        9,070        104        28        32        3,226        735        95,994   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net book value

                     

As of December 31, 2012

    25,546        27,780        211,585        179,833        526,629        4,954        73,754        10,190        —          334,564        1,394,835   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

As of December 31, 2011

    15,978        6,218        199,099        169,975        528,182        4,264        70,988        8,346        —          194,351        1,197,401   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

F-37


Table of Contents

Notes to the consolidated financial statements (continued)

 

  (b) Mining concessions mainly include acquisition costs by S/.11,069,000 related to coal concessions acquired through a purchase option executed during 2011, see note 27. The caption also includes some concessions acquired by the Group for exploration activities related to the cement business.

Due to lowest zinc prices observed during 2011 and based on future management’s expectations of zinc prices, the Group decided recognize in the consolidated income statement a full impairment charge of approximately S/.95,994,000, related to the total net book value of the zinc mining unit which includes concession costs, development costs and related facilities and equipments. From this amount, S/.44,103,000 corresponds to concessions costs. According to the management´s expectation the recovery amount of this zinc mining unit is zero.

 

  (c) There were no additions under finance leases during the years 2012 and 2011 (S/.32,834,000 during 2010). During 2012, the Group prepaid the finance maintained with Banco de Credito del Peru, see note 14.

 

  (d) During 2012 the Group capitalized borrowing costs by S/.4,145,000 mainly related with the expansion of the cement plant located in the northeast of Peru, for the construction of the diatomite bricks plant and for the implementation of two kilns in the north of Peru. The carrying amount of these eligible assets was S/.194,662,000 as of December 31, 2012. These assets have not associated any specific loans, so the rate used to determine the amount of borrowing costs eligible for capitalization was 6.24%, which corresponds to the weighted average rate obtained from all generic debts. During 2011 the borrowing costs incurred and related to eligible assets were not significant.

 

  (e) As of December 31, 2012, the Group has assessed the use conditions of its long-term assets and did not find any indicator that these assets may be impaired.

 

11. Exploration and evaluation assets

 

  (a) The composition and movement in this caption to the date of the consolidated statements of financial position is presented below:

 

     S/.(000)  

Cost

  

As of January 1, 2011

     29,278   

Additions

     617   
  

 

 

 

As of December 31, 2011

     29,895   

Additions (b)

     22,038   

Write-off

     (2,447
  

 

 

 

As of December 31, 2012

     49,486   
  

 

 

 

 

  (b) During 2012, it mainly includes exploration costs related to brine project, located in Bayovar, Province of Sechura, Department of Piura, developed by the subsidiary Salmueras Sudamericanas S.A.

As of December 31, 2012, the exploration and evaluation assets includes S/.26,797,000 related to brine project, S/.15,565,000 related to phosphates project and S/.7,124,000 related to other exploration activities for the cement business.

 

  (c) As of December 31, 2012, the Group has assessed the use conditions of its exploration and evaluation assets and did not find any indicator that these assets may be impaired.

 

F-38


Table of Contents

Notes to the consolidated financial statements (continued)

 

12. Trade and other payables

This caption is made up as follows:

 

     2012      2011  
     S/.(000)      S/.(000)  

Trade payables

     80,263         84,948   

Remuneration payable

     16,147         13,018   

Taxes and contributions

     15,391         3,131   

Board of Directors’ fees

     4,643         4,426   

Dividends payable, note 16(h)

     4,451         4,467   

Advances from customers

     2,899         2,477   

Accounts payable to IPSA and its affiliates, note 25

     232         230   

Interests payable

     25         2,806   

Third party commission related to sale of subsidiary shares

     —           5,394   

Other accounts payable

     8,713         7,588   
  

 

 

    

 

 

 
     132,764         128,485   
  

 

 

    

 

 

 

Trade accounts payable result from the purchases of material and supplies for the Group, and mainly correspond to invoices payable to domestic suppliers. They are non-interest bearing and are normally settled on 60 to 120 days term.

Interest payable is normally settled monthly throughout the financial year.

 

F-39


Table of Contents

Notes to the consolidated financial statements (continued)

 

13. Provisions

This caption is made up as follows:

 

     Workers’
profit-sharing
    Long-term
incentive plan
     Rehabilitation
provision
     Total  
     S/.(000)     S/.(000)      S/.(000)      S/.(000)  

At January 1, 2012

     28,694        6,000         4,909         39,603   

Additions, note 21

     27,522        5,529         —           33,051   

Discount rate adjustment, note 24

     —          140         —           140   

Payments and advances

     (32,187     —           —           (32,187
  

 

 

   

 

 

    

 

 

    

 

 

 

At December 31, 2012

     24,029        11,669         4,909         40,607   
  

 

 

   

 

 

    

 

 

    

 

 

 

Current portion

     24,029        —           —           24,029   

Non-current portion

     —          11,669         4,909         16,578   
  

 

 

   

 

 

    

 

 

    

 

 

 
     24,029        11,669         4,909         40,607   
  

 

 

   

 

 

    

 

 

    

 

 

 

 

     Workers’
profit-sharing
    Long-term
incentive plan
     Rehabilitation
provision
     Total  
     S/.(000)     S/.(000)      S/.(000)      S/.(000)  

At January 1, 2011

     25,959        —           4,803         30,762   

Additions

     29,477        6,000         106         35,583   

Payments and advances

     (26,742     —           —           (26,742
  

 

 

   

 

 

    

 

 

    

 

 

 

At December 31, 2011

     28,694        6,000         4,909         39,603   
  

 

 

   

 

 

    

 

 

    

 

 

 

Current portion

     28,694        —           —           28,694   

Non-current portion

     —          6,000         4,909         10,909   
  

 

 

   

 

 

    

 

 

    

 

 

 
     28,694        6,000         4,909         39,603   
  

 

 

   

 

 

    

 

 

    

 

 

 

Workers’ profit sharing -

In accordance with Peruvian legislation, the Group maintains an employee profit sharing plan between 8% and 10% of annual taxable income. Distributions to employees under the plan are based 50% on the number of days that each employee worked during the preceding year and 50% on proportionate annual salary levels.

Long-term incentive plan -

In 2011, the Group implemented a compensation plan for its key management. This long-term benefit is payable in cash, based on the salary of each officer and depends on the years of service of each officer in the Group. Under the plan, the executive would receive the equivalent of an annual salary for each year of service beginning to accrue from 2011. This benefit accrues and accumulates for each officer, and is payable in two moments: at the end of the first five years since the creation of this bonuses plan, and at the end of the eighth year from the creation of the plan. If the executive decides to voluntarily leave the Group before a scheduled distribution, he will not receive this compensation. In accordance with IAS 19, the Group used the Projected Unit Credit Method to determine the present value of this deferred obligation and the related current deferred cost, considering the expected increases in salary base and the corresponding current market discount rate. As of December 31, 2012 the Group has recorded a liability for S/.11,669,000 related to this compensation (S/.6,000,000 as of December 31, 2011).

 

F-40


Table of Contents

Notes to the consolidated financial statements (continued)

 

Rehabilitation provision -

As of December 31, 2012 it corresponds to the provision for the future cost of rehabilitating the zinc mine site, located in the District of Yambrasbamba, Province of Bongara, Department of Amazonas. The provision has been created based on studies made by internal specialists. Assumptions, based on current economic environment, have been made which management believes are a reasonable basis upon which to estimate the future liability. These estimates are reviewed regularly to take into account any material change to the assumptions. However, actual rehabilitation costs will ultimately depend upon future market prices for the necessary decommissioning works required which will reflect market conditions at the relevant time.

Management expects to incur these expenses in medium-term, refer note 10(b). The Group believes that this liability is sufficient and according the current environmental protection laws approved by the Ministry of Energy and Mines.

 

14. Interest-bearing loans and borrowings

This caption is made up as follows:

 

     Interest rate      Maturity      2012      2011  
     %             S/.(000)      S/.(000)  

Bank overdraft

           

BBVA Banco Continental

     4.31         Mar 3, 2013         13,255         —     

Loans

           

BBVA Banco Continental

     6.75         Dec 29, 2018         202,200         202,200   

BBVA Banco Continental

     6.20         May 10, 2014         —           135,450   

Banco de Credito del Peru

     6.45         Apr 20, 2013         —           70,000   

Banco de Credito del Peru

     6.20         Mar 21, 2013         —           42,000   

BBVA Banco Continental

     6.41         Dec 14, 2013         —           41,000   

BBVA Banco Continental

     6.00         Jun 14, 2012         —           28,000   

Banco de Credito del Peru

     2.61         Mar 28, 2012         —           12,274   

Finance leases

           

Banco de Crédito del Perú

     5.19 and 7.17         2013/2016         —           60,708   

Debt issuance costs

           —           (1,038
        

 

 

    

 

 

 
           215,455         590,594   

Less – current portion

           22,884         139,048   
        

 

 

    

 

 

 

Non-current portion

           192,571         451,546   
        

 

 

    

 

 

 

Bank overdraft with BBVA Banco Continental

In December 2012, the Group signed an overdraft line for S/.50,000,000. The bank overdraft due on March 3, 2013, accrues interest at an annual rate of 4.31%. As of December 31, 2012, the Group used S/.13,255,000 of the total line overdraft.

During 2012, the Group made prepayments amounting to S/.388,394,000 corresponding to three loans with BBVA Banco Continental, three loans with Banco de Credito del Peru and a finance lease with Banco de Credito del Peru. These prepayments generated additional commissions and costs for approximately S/.7,354,000, see note 24. As of December 31, 2012 the Group maintains only a bank overdraft and one debt with BBVA Banco Continental.

 

F-41


Table of Contents

Notes to the consolidated financial statements (continued)

 

Loan with BBVA Banco Continental (6.37%, 6.64% and 7.01%) -

In December 2011, the Company signed a Loan Agreement with BBVA Banco Continental for S/.202,200,000 (equivalent to US$75,000,000). The debt is due on December 2018 and accrues interest at an annual rate of 6.37 percent during the first year, 6.64% during the second year and 7.01% from the third year to the maturity date. For accounting purposes (amortized cost) the effective interest rate for all the period is 6.75%. This loan includes the following financial restrictions:

 

   

The liquidity ratio must be greater than 1.0 times during the term and in each one of the financial years, based on the separate financial statements of the Company.

 

   

The financial debt-to-EBITDA ratio must be lower than 3 times, during the term and in each ratio measurement date, calculated using the Company’s separate financial statements.

 

   

The EBITDA-to-Debt Service ratio must be greater than 1.20 times during the term and in each ratio measurement date, taking the last twelve (12) months elapsed as calculation basis, based on the separate financial statements of the Company.

In Management’s opinion, as of December 31, 2012 and 2011 the Company has complied with these financial restrictions.

 

F-42


Table of Contents

Notes to the consolidated financial statements (continued)

 

15. Deferred income tax assets and liabilities, net

This caption is made up as follows:

 

    As of
January 1,
2011
    Consolidated
income
statement
    Tax effect
of
available-
for-sale
investments
    As of
December 31,
2011
    Consolidated
income
statement
    Tax effect
of
available-
for-sale
investments
    As of
December 31,
2012
 
    S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)  

Movement of deferred income tax assets

             

Tax-loss carryforward

    —          7,733        —          7,733        5,438        —          13,171   

Provision for vacations

    31        (7     —          24        165        —          189   

Other

    33        23        —          56        22        —          78   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total deferred income tax assets

    64        7,749        —          7,813        5,625        —          13,438   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Movement of deferred income tax liabilities:

             

Deferred income tax assets

             

Impairment of zinc mining assets

    —          28,830        —          28,830        —          —          28,830   

Provision for vacations

    3,085        173        —          3,258        847        —          4,105   

Effect of differences in the depreciation and amortization rates used for book purposes

    2,263        (2,263     —          —          —          —          —     

Long-term incentive plan

    —          1,800        —          1,800        1,700        —          3,500   

Other

    2,225        1,104        —          3,329        149        —          3,478   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    7,573        29,644        —          37,217        2,696        —          39,913   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Deferred income tax liabilities

             

Effect of differences between book and tax bases of fixed assets and in the depreciation rates used for book purposes

    (131,002     626        —          (130,376     2,865        —          (127,511

Effect of available-for-sale investments

    (6,590     —          2,622        (3,968     —          (3,844     (7,812

Other

    (5,850     289        —          (5,561     663        —          (4,898
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
    (143,442     915        2,622        (139,905     3,528        (3,844     (140,221
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total deferred income tax liabilities, net

    (135,869     30,559        2,622        (102,688     6,224        (3,844     (100,308
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
      38,308        2,622          11,849        (3,844  
   

 

 

   

 

 

     

 

 

   

 

 

   

 

F-43


Table of Contents

Notes to the consolidated financial statements (continued)

 

A reconciliation between tax expenses and the product of accounting profit multiplied by Peruvian tax rate for the years 2012,2011 and 2010 is as follows:

 

     2012     2011     2010  
     S/.(000)     S/.(000)     S/.(000)  

Accounting profit before income tax

     229,343        103,848        327,214   
  

 

 

   

 

 

   

 

 

 

At statutory income tax rate of 30%

     68,803        31,154        98,164   

Permanent differences

      

Dividends obtained from available-for-sale investments

     (167     (38     (178

Non-deductible expenses, net

     5,107        7,263        6,119   
  

 

 

   

 

 

   

 

 

 

At the effective income tax rate of 32% (2011: 37% and 2010: 32%)

     73,743        38,379        104,105   
  

 

 

   

 

 

   

 

 

 

The income tax expenses shown for the years ended December 31, 2012, 2011 and 2010 are:

 

     2012     2011     2010  
     S/.(000)     S/.(000)     S/.(000)  

Consolidated income statement

      

Current

     85,592        76,687        83,649   

Deferred

     (11,849     (38,308     20,456   
  

 

 

   

 

 

   

 

 

 

Income tax expense reported in the income statements

     73,743        38,379        104,105   
  

 

 

   

 

 

   

 

 

 

The income tax recorded directly to other comprehensive income during the year 2012 is an expense of S/.3,844,000 (an income of S/.2,622,000 during the year 2011 and an expense of S/.3,754,000 during the year 2010).

As of December 31, 2012 and 2011, it is not necessary to recognize deferred tax liability for taxes that would be payable on the unremitted earnings of the Group’s subsidiaries. The Group has determined that the timing differences will be reversed by means of dividends to be received in the future that, according to the tax rules in effect in Peru, are not subject to income tax.

As of December 31, 2012, the deferred income tax asset related to tax-losses carry forward was mainly determined by the subsidiaries Fosfatos del Pacífico S.A. and Salmueras Sudamericanas S.A. for approximately S/.9,798,000, the tax losses related are available indefinitely for offset against 50% of future annual taxable profits. The amount of losses carried out is subject to the outcome of the reviews for the tax authorities referred in note 27.

 

F-44


Table of Contents

Notes to the consolidated financial statements (continued)

 

16. Equity

 

  (a) Share capital -

As of December 31, 2012 and 2011 share capital is represented by 531,461,479 and 419,977,479, respectively, authorized common shares, with a par value of one Nuevo Sol per share. As it is mentioned in note 1, from the total outstanding common shares as of December 31, 2012, 111,484,000 are listed in the New York Stock Exchange and 419,977,479 in the Lima Stock Exchange.

Until 2011, the capital stock was presented net of the par value of 1,200,000 treasury common shares acquired in 2008 by the subsidiary Distribuidora Norte Pacasmayo S.R.L. On October 2012, these treasury shares were sold on the Lima Stock Exchange, resulting in a net gain of S/.4,922,000, which was directly recognized in equity.

 

  (b) Investment shares -

Investment shares do not have voting rights or participate in shareholder’s meetings but do participate in the distribution of dividends. Investment shares confer upon the holders thereof the right to participate in dividends distributed according to their nominal value, in the same manner as common shares. Investment shares also confer the holders thereof the right to:

 

  (i) maintain the current proportion of the investment shares in the case of capital increase by new contributions;

 

  (ii) increase the number of investment shares upon capitalization of retained earnings, revaluation surplus or other reserves that do not represent cash contributions;

 

  (iii) participate in the distribution of the assets resulting from liquidation of the Company in the same manner as common shares; and,

 

  (iv) redeem the investment shares in case of a merger and/or change of business activity of the Company.

As of December 31, 2012 and 2011 the Company has 50,503,341 and 49,575,341 investment shares, respectively, subscribed and fully paid, with a par value of one Nuevo Sol per share. As it is mentioned in note 1, on March 30, 2012, the Company issued 927,783 investment shares, pursuant to a preemptive right offer in connection with the issuance of ADSs, so the holders of investment shares have rights to maintain their proportional ownership in the share capital of the Company.

 

  (c) Treasury shares -

As of December 31, 2011, this corresponds to 1,200,000 of the Company’s common shares acquired by its subsidiary Distribuidora Norte Pacasmayo S.R.L. at a cost of S/.3,180,000. On October 2012, the subsidiary sold these treasury shares to third parties through Lima Stock Exchange for S/.6,122,000 (net of the related income tax effect). The net gain of this transaction amounted to S/.4,922,000 (net of the tax effect) and was recorded in the retained earnings caption of the consolidated statement of changes in equity.

 

F-45


Table of Contents

Notes to the consolidated financial statements (continued)

 

  (d) Additional paid-in capital -

During 2012, the additional paid-in capital was increased by S/.561,191,000 by the issue of 111,484,000 common shares and 928,000 investment shares corresponding to a public offering of American Depositary Shares (ADS) registered with the New York Stock Exchange and Lima Stock Exchange. This amount corresponds to the excess of the total proceeds obtained by this transaction in relation to the nominal value of these shares, see note 1.

 

  (e) Legal reserve -

Provisions of the General Corporation Law require that a minimum of 10 percent of the distributable earnings for each period, after deducting the income tax, be transferred to a legal reserve until such is equal to 20 percent of the capital. This legal reserve can offset losses or can be capitalized, and in both cases there is the obligation to replenish it.

 

  (f) Available for-sale reserve -

This reserve records fair value changes on available-for-sale financial assets.

 

  (g) Foreign currency translation reserve -

The foreign currency translation reserve is used to record exchange differences arising from the translation of the financial statements of Zemex LLC.

 

  (h) Dividends paid -

 

     S/.(000)  

Declared dividends during the year 2012

  

Dividends approved on October 17, 2012: S/.0.08935 per share

     52,000   

Declared dividends during the year 2011

  

Dividends approved on February 28, 2011: S/.0.11926 per share

     56,000   

Dividends approved on October 10, 2011: S/.0.07454 per share

     35,000   
  

 

 

 
     91,000   
  

 

 

 

Declared dividends during the year 2010

  

Dividends approved on April 26, 2010: S/.0.09158 per share

     43,000   

Dividends approved on October 25, 2010: S/.0.06389 per share

     30,000   
  

 

 

 
     73,000   
  

 

 

 

As of December 31, 2012, dividends payable amount to S/.4,451,000 (December 31, 2011: S/.4,467,000).

 

F-46


Table of Contents

Notes to the consolidated financial statements (continued)

 

  (i) Contributions of non-controlling interest -

Salmueras Sudamericanas S.A.

In order to finance the Salmueras project, the General Shareholders’ Meeting of the subsidiary Salmueras Sudamericanas S.A. held on January 9, 2012, agreed on a contribution of S/.20,000,000 to the subsidiary, to be held in two parts of S/.10,000,000 on the following dates: February 15 and May 15, 2012. These contributions are partial payments of the capital commitment assumed by the Company and Quimpac S.A. for the Salmueras project up to US$100,000,000 and US$14,000,000, respectively, to maintain its interests in this subsidiary. During the year ended as of December 31, 2012 the contribution made by Quimpac S.A. amounts to S/.2,307,000 (S/.4,779,000 during the year ended as of December 31, 2011). The effect of the difference on capital contributions and interests acquired by each shareholder amounted S/.2,713,000 was recognized as a charge in additional paid-in capital, and credit in non controlling interest.

Fosfatos del Pacifico S.A.

The General Shareholders´Meeting of the subsidiary Fosfatos del Pacifico S.A. held on February 29, 2012 agreed a contribution of US$33,000,000 to the subsidiary, to be held in two parts of US$20,000,000 and US$13,000,000 on the following dates: April 15 and July 15, 2012, respectively. As of December 31, 2012, the contribution made by MCA Phosphates Pte. to Fosfatos del Pacifico S.A. amounts to US$9,900,000 (equivalent to S/.26,250,000).

 

17. Sales of goods

This caption is made up as follows:

 

     2012      2011      2010  
     S/.(000)      S/.(000)      S/.(000)  

Cement, concrete and blocks

     972,241         802,959         728,319   

Steel rebar and building materials

     143,165         143,334         96,072   

Quicklime

     52,738         45,859         57,695   

Other

     1,664         2,818         15,961   
  

 

 

    

 

 

    

 

 

 
     1,169,808         994,970         898,047   
  

 

 

    

 

 

    

 

 

 

 

F-47


Table of Contents

Notes to the consolidated financial statements (continued)

 

18. Cost of sales

This caption is made up as follows:

 

     2012     2011      2010  
     S/.(000)     S/.(000)      S/.(000)  

Consumption of miscellaneous supplies

     288,793        211,146         160,271   

Maintenance and third-party services

     164,502        105,031         86,219   

Shipping costs

     93,085        60,731         46,147   

Personnel expenses, note 21 (c)

     67,805        57,165         55,045   

Other manufacturing expenses

     40,250        51,191         38,771   

Depreciation

     37,259        38,091         29,724   

Costs of packaging

     27,584        25,005         21,866   

Change in products in process, finished goods and raw materials

     (6,220     21,155         49,496   

Recovery of provision for inventory obsolescence and impairment

     —          —           (8,549
  

 

 

   

 

 

    

 

 

 
     713,058        569,515         478,990   
  

 

 

   

 

 

    

 

 

 

 

19. Administrative expenses

This caption is made up as follows:

 

     2012      2011      2010  
     S/.(000)      S/.(000)      S/.(000)  

Personnel expenses, note 21 (c)

     91,683         90,266         73,431   

Third-party services

     81,978         80,641         52,317   

Depreciation and amortization

     10,695         9,542         6,564   

Donations

     6,750         3,733         2,698   

Board of Directors compensation

     5,103         5,394         15,221   

Consumption of supplies

     3,204         3,098         3,786   

Taxes

     2,828         2,785         4,044   

Environmental expenditures, note 27

     826         737         636   
  

 

 

    

 

 

    

 

 

 
     203,067         196,196         158,697   
  

 

 

    

 

 

    

 

 

 

 

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Table of Contents

Notes to the consolidated financial statements (continued)

 

20. Selling and distribution expenses

This caption is made up as follows:

 

     2012      2011      2010  
     S/.(000)      S/.(000)      S/.(000)  

Personnel expenses, note 21 (c)

     13,960         10,145         8,335   

Advertising and promotion

     10,826         8,402         5,202   

Third-party services

     1,157         1,185         825   

Provision for doubtful accounts

     105         —           —     

Other

     4,817         3,975         2,139   
  

 

 

    

 

 

    

 

 

 
     30,865         23,707         16,501   
  

 

 

    

 

 

    

 

 

 

 

21. Employee benefits expenses

 

  (a) Employee benefits expenses are made up as follow:

 

     2012      2011      2010  
     S/.(000)      S/.(000)      S/.(000)  

Wages and salaries

     87,990         80,892         70,363   

Workers’ profit sharing (b)

     27,522         29,477         29,796   

Severance payments

     17,451         18,324         13,651   

Legal bonuses

     12,892         10,426         9,815   

Vacations

     13,225         9,461         9,192   

Long-term compensation, note 13

     5,529         6,000         —     

Training

     2,903         116         1,108   

Others

     5,936         2,880         2,886   
  

 

 

    

 

 

    

 

 

 
     173,448         157,576         136,811   
  

 

 

    

 

 

    

 

 

 

 

  (b) A portion of the workers’ profit sharing for the year 2011 of S/.4,788,000 is related to the sale of a non-controlling equity interest in the subsidiary Fosfatos del Pacífico S.A. The gain from the sale of that interest was recorded in equity.

 

  (c) Employee benefits expenses are allocated as follows:

 

     2012      2011      2010  
     S/.(000)      S/.(000)      S/.(000)  

Cost of sales, note 18

     67,805         57,165         55,045   

Administrative expenses, note 19

     91,683         90,266         73,431   

Selling and distribution expenses, note 20

     13,960         10,145         8,335   
  

 

 

    

 

 

    

 

 

 
     173,448         157,576         136,811   
  

 

 

    

 

 

    

 

 

 

 

F-49


Table of Contents

Notes to the consolidated financial statements (continued)

 

22. Other operating income, net

This caption is made up as follows:

 

     2012     2011      2010  
     S/.(000)     S/.(000)      S/.(000)  

Net gain on disposal of property, plant and equipment

     3,901        203         157   

Sales of miscellaneous supplies and laboratory tests

     1,420        1,757         3,182   

Income from land rental and office lease, note 25

     449        442         441   

Income from management and administrative services provided to Parent company, note 25

     376        376         360   

Recovery of expenses

     2,413        2,522         2,993   

Write-off of intangible assets

     —          —           (1,363

Reversal of provision for closure of mining concession

     —          —           478   

Income from lease of mining concession, (a)

     —          —           5,334   

Other minor-less than S/.200,000, net

     (853     4,038         5,079   
  

 

 

   

 

 

    

 

 

 
     7,706        9,338         16,661   
  

 

 

   

 

 

    

 

 

 

 

  (a) On March 29, 2010, the subsidiary Corianta S.A. completed the sale of the mining concession and other assets related to Mina Raul business unit, that included land and copper mining concessions, with a book value of S/.2,537,000. This sale was made to Compañía Minera Condestable S.A.A. (Condestable), a third-party, in free market conditions, obtaining as a result of this sale a net gain for approximately S/.75,887,000.

Before this sale, the Group received income lease from these assets amounted S/.5,334,000 during 2010.

 

23. Finance income

This caption is made up as follows:

 

     2012      2011      2010  
     S/.(000)      S/.(000)      S/.(000)  

Interest on deposits

     22,194         2,562         1,797   

Dividends received

     558         126         592   

Interests on accounts receivable

     567         —           467   

Interest on loans granted to Parent company, note 25

     7         7         421   
  

 

 

    

 

 

    

 

 

 
     23,326         2,695         3,277   
  

 

 

    

 

 

    

 

 

 

 

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Table of Contents

Notes to the consolidated financial statements (continued)

 

24. Finance costs

This caption is made up as follows:

 

     2012      2011      2010  
     S/.(000)      S/.(000)      S/.(000)  

Interest on loans and borrowings

     14,655         14,229         9,662   

Commissions on prepayments of debts, note 14

     7,354         —           —     

Other

     670         443         619   

Finance charges under finance leases

     952         4,441         4,529   
  

 

 

    

 

 

    

 

 

 

Total interest expense

     23,631         19,113         14,810   

Discount rate adjustment of long-term incentive plan

     140         —           —     

Discount rate adjustment of rehabilitation provision

     —           106         228   
  

 

 

    

 

 

    

 

 

 

Total finance costs

     23,771         19,219         15,038   
  

 

 

    

 

 

    

 

 

 

 

25. Related party disclosure

Transactions with related entities -

During the years 2012, 2011 and 2010, the Company carried out the following transactions with Inversiones Pacasmayo S.A. (IPSA) and its affiliates:

 

     2012      2011      2010  
     S/.(000)      S/.(000)      S/.(000)  

Income

        

Income from land rental services

     376         376         360   

Income from office lease

     273         284         291   

Fees for management and administrative services

     176         158         150   

Interest on loans

     7         7         421   

Other transactions

        

Loan provided to IPSA

     —           6,965         28,553   

Loans provided to Sercopa

     240         —           —     

Loan obtained from IPSA

     —           6,700         —     

As a result of these transactions, the Company had the following rights and obligations with Inversiones Pacasmayo S.A. and its affiliates as of December 31, 2012 and 2011:

 

     2012      2011  
     Accounts
receivable
     Accounts
payable
     Accounts
receivable
     Accounts
payable
 
     S/.(000)      S/.(000)      S/.(000)      S/.(000)  

Inversiones Pacasmayo S.A.

     70         —           170         14   

Other

     77         232         252         216   
  

 

 

    

 

 

    

 

 

    

 

 

 
     147         232         422         230   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

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Table of Contents

Notes to the consolidated financial statements (continued)

 

The sales to and purchases from related parties are made at terms equivalent to those that prevail in arm’s length transactions. There have been no guarantees provided or received for any related party receivables or payables. Outstanding balances are interest free. For the year ended as of December 31, 2012 and 2011, the Group has not recorded any allowance for doubtful accounts relating to amounts owed by relating parties. This assessment is undertaken each financial year by examining the financial position of the related party.

In February 2011, the Company provided a loan to Inversiones Pacasmayo S.A. for a total amount of S/.6,965,000 with annual interest rate of 6 percent. This loan was collected in February and March 2011. In March 2010 the Company provided a loan to Inversiones Pacasmayo S.A. for a total amount of S/.28,553,000 with annual interest rate of 6 percent. This loan was collected in December 2010. The income interest generated from this loan amounted to S/.421,000.

Compensation of key management personnel of the Group -

The expenses for profit-sharing, compensation and other concepts for members of the Board of Directors and the management payroll amounted to S/.26,687,000 during the 2012 period (S/.31,918,000 and S/.29,487,000 during 2011 and 2010, respectively). The Company does not compensate Management with post-employment or contract termination benefits or share-based payments.

 

26. Earnings per share

Basic earnings per share amounts are calculated by dividing net profit for the year attributable to common shares and investment shares of the parent by the weighted average number of common shares and investment shares outstanding during the year.

The Group has no dilutive potential ordinary shares as of December 31, 2012 and 2011.

Calculation of the weighted average number of shares and the basic and diluted earnings per share is presented below:

 

     2012      2011      2010  
     S/.(000)      S/.(000)      S/.(000)  

Numerator

        

Net profit attributable to ordinary equity holders of the parent

     159,005         67,694         223,219   
  

 

 

    

 

 

    

 

 

 
     2012      2011      2010  
     Thousands      Thousands      Thousands  

Denominator

        

Weighted average number of common and investment shares

     570,072         468,352         468,352   
  

 

 

    

 

 

    

 

 

 

 

F-52


Table of Contents

Notes to the consolidated financial statements (continued)

 

There have been no other transactions involving common shares and investment shares between the reporting date and the date of completion of these consolidated financial statements.

 

     2012      2011      2010  
     S/.      S/.      S/.  

Basic and diluted earnings for common and investment shares

     0.28         0.14         0.48   
  

 

 

    

 

 

    

 

 

 

 

27. Commitments and contingencies

Operating lease

As of December 31, 2012 the Group, as lessor, has a land lease with Compañía Minera Ares S.A.C. a related party of Inversiones Pacasmayo S.A. This lease is annually renewable, and provide an annual rent of S/.273,000 (2011: S/.284,000, 2010: S/.291,000).

In May, 2012, the Group signed a contract with Petroleos del Peru – Petroperu S.A. to lease a land located in the north of Peru. The lease has a term of maturity of 30 years and accrued an annual rent of US$200,000 from 2012 to 2015 and from 2016 to the maturity date of the contract, the rent will be equivalent to 0.64% of the sales of phosphoric rock, but may not be less than US$1,600,000 annually. The expense for the year 2012 amounted to S/510,000 and it was recognized in the administrative expenses caption in the consolidated income statement.

Capital commitments

As of 31 December 2012, the Group had the following main commitments:

 

   

Development activities of phosphoric rock by S/.21,385,000.

 

   

Expansion of the cement plant located in the Northeast of Peru by S/.6,424,000.

 

   

Construction of a cement plant located in the North of Peru S/.123,236,000

 

   

The Group maintains long-term electricity supply agreements which billing is determined taking into consideration consumption of electricity and other market variables.

 

   

Commitment for development of brine Project up to US$100,000,000, see note 1. In connection with this commitment, as of December 31, 2012 the Group has made contributions for US$12,526,000.

Others commitments

 

   

Commitment of future sales of phosphoric rock to Mitsubishi Corporation when the project starts production, see note 1.

Purchase option

Coal -

In December 2009 and February 2010, the Group entered into agreements to carry out exploration activities in a coal concessions held by third parties. Under the terms of the agreements, the Group has the option to acquire the concessions for an aggregate purchase price of US$5,500,000. In October 2011 the Group exercised one of its purchase options through the payment of US$4,500,000, which is included in mining concessions in property, plant and equipment caption. As of December 31, 2012 the Group maintains a remaining option to purchase an additional coal mining concession for US$1,000,000. The Group already paid US$222,000 as of the date.

 

F-53


Table of Contents

Notes to the consolidated financial statements (continued)

 

Other minerals -

In June 2011 the Group paid US$266,000 and during 2012 made an additional payment of US$647,000 for subscription of a purchase option to acquire a 51 percent interest of a company which owns certain mining concessions and it is located in Uruguay. To exercise the option, the Group would have to pay additional amounts. During 2012, the Group has dismissed this project due to its low feasibility. As of December 31, 2012, the total payment the Company made for this option amounted to S/.2,447,000, and in 2012 this amount was recognized as expense in the consolidated income statements.

Put and call options (“deadlock put/call options”)

According to the shareholders´ agreement subscribed between the Company and MCA, see note 1, in case of occurrence a deadlock situation or unexpected event, MCA has the option to sell all or a portion of the Fosfatos´ shares to the Company at the lower of (i) the book value of such shares and (ii) the fair market value of such shares, but in no event less than US$0.01 (the “Put Price”). At the same time, in case of occurrence a deadlock situation or unexpected event, the Company has the option to require MCA to sell all or a portion of the Fosfato´s shares at the higher of (i) the book value of such shares or (ii) the fair market value of such shares, but in no event shall such price be less than $0.01 (the “Call Price”). The objective of the Deadlock put/call option provision is to provide for an exit mechanism in those rare circumstances when reaching agreement on a critical matter becomes impossible.

According with this agreement, MCA has no restrictions on sale its non-controlling interest during any time to third parties, and the only additional requirement to have the call or put option is to have at least the 15% of interest in Fosfatos.

Mining royalty

Third parties

Cementos Pacasmayo S.A.A. is required to pay a royalty to Compañia Pilar del Amazonas S.A., which is the owner of the surface of Bongara mining unit. This royalty is equivalent to 4% of net revenue obtained as a result of commercial exploitation carried out within the mining unit, and may not be less than US$300,000 annually. This royalty expense amounted to S/.773,000 (2011: S/.824,000 and 2010: S/.875,000).

The subsidiary Fosfatos del Pacífico S.A., signed an agreement with the Peruvian Government, Fundación Comunal San Martin de Sechura and Activos Mineros S.A.C. related to the use of the Bayovar concession, which contains phosphoric rock and diatomites. As part of this agreement, , the Subsidiary Fosfatos del Pacífico S.A. is required to pay to Fundación Comunal San Martin de Sechura and Activos Mineros S.A.C. an equivalent amount to US$3 for each metric tons of diatomite extracted. The annual royalty may not be less than the equivalent to 40,000 metric tons during the second year of production and 80,000 metric tons since the third year of production. The related royalty expense amounted to S/.612,000 for the year ended December 31, 2012 (S/.392,000 for 2011 and zero for 2010).

Peruvian government

On September 29, 2011, the Peruvian government amended the Royalty Mining Law to increase taxation on metallic and non-metallic mining activities. The amendment became effective as of October 1, 2011. According to this law, the royalty for the exploitation of metallic and nonmetallic resources is payable on a quarterly basis in an amount equal to the greater of (i) an amount determined in accordance with a statutory scale of tax rates based on operating profit margin that is applied to the operating profit, as adjusted by certain items, and (ii) 1% of net sales, in each case during the applicable quarter. These amounts are estimated based on the unconsolidated financial statements of Cementos Pacasmayo S.A.A. and the subsidiaries affected by this mining royalty, prepared in accordance with IFRS. Mining royalty payments will be deductible for income tax purposes in the fiscal year in which such payments are made.

 

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Table of Contents

Notes to the consolidated financial statements (continued)

 

Management and its legal counsel believe that the specific regulations issued by the Ministry of Economy and Finance are unconstitutional because they impose with mining royalties tax on non-mining activities, which is not according with the Royalty Mining Law. In the case of the cement industry, this regulation states that the royalty must be calculated on operating profit or net sales of products whatever its stage, including, manually or industrially, finished products, hence the operating profit or net sales corresponds to cement sales and not under the limestone, mineral component used in the production of cement. As a consequence, the Group filed a claim against the Ministry of Economy and Finance and the Ministry of Mining and Energy asking to repeal the regulation of mining royalty referred to the definition of “the products whatever its stage”, so that royalty for non-metallic mining activities would be determined on base of the mineral resource effectively removed, as states the Mining Royalty Law.

In September 2012, the Company filed a constitutional claim to prevent the tax authority from applying the legal criteria defined in the amended royalty mining law retroactively, for the periods before such amendment was enacted, and to declare that the mining royalty tax applicable to the exploitation of non-metallic mining resources be calculated based solely on the value of the final product obtained from the mineral separation process, net of any costs incurred in that process (“componente minero”), excluding any profit obtained from the industrial activity.

In addition the Company has filed an anti-trust claim (“denuncia contra barreras burocráticas de acceso al Mercado”), with the National Institute for the Protection of Competition and Intellectual Property (Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual, or “INDECOPI”), to have certain provisions of the Royalty Mining Law regulations declared illegal, and, therefore, not applicable.

Management and its legal counsel believe that the Group has strong legal arguments that support its position and a high probability of obtaining a favorable outcome in this process, nevertheless, Management can not estimate a timeline for the resolution of this claim.

As a result, the Group had recognized and paid a mining royalty for the last quarter of 2011 according to the provisions of the Mining Royalty Law, as interpreted by management and its legal and tributaries counsels.

If the Group would not obtain a favorable outcome in this process, and considering a literal application of this regulation, the royalty expense for the period 2012 would have been S/.10,299,000 instead of S/.451,000, (S/.2,471,000 from October to December 2011 instead of S/.111,000 recorded on the financial statements for such period).

Mining royalty expense paid to the Peruvian Government for the years 2012, 2011 and 2010 amounted to S/.316,000, S/.291,000 and S/.230,000, respectively, and recorded in cost of sales caption of the consolidated income statement.

On December 26, 2012 and January 24, 2013, SUNAT issued tax assessments against the Company applying the new criteria established in the amended Royalty Mining Law, which included in the calculation profit obtained from industrial activity, to the year 2008 and 2009 amounting to S/.7,627,000 and S/.7,645,000, respectively, before the amendment was adopted. The Group has been advised by its legal counsel that it is only possible, but not probable, that these actions will succeed. Accordingly, no provision for any liability has been made in these consolidated financial statements as of December 31, 2012.

 

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Table of Contents

Notes to the consolidated financial statements (continued)

 

Tax situation

During the four years following the year tax returns are filed, the tax authorities have the power to review and, as applicable, correct the income tax computed by each individual company. The income tax and value-added tax returns for the following years are open to review by the tax authorities:

 

     Years open to review by Tax Authorities
Entity    Income tax    Value-added tax

Cemento Pacasmayo S.A.A.

   2008/2010-2012    2008-2012

Cementos Selva S.A.

   2009-2012    2009/2011-2012

Distribuidora Norte Pacasmayo S.R.L.

   2008/2010-2012    2008-2012

Empresa de transmisión Guadalupe S.A.C.

   2008-2012    2008-2012

Fosfatos del Pacífico S.A.

   2009-2012    2009-2012

Salmueras Sudamericanas S.A.

   2011-2012    2011-2012

Corianta S.A. (*)

   2008-2011    (**)

Tinku Generacion S.A.C. (*)

   2008-2011    Dec. 2008 / 2009-2011

 

(*) These subsidiaries were merged with the Company in December 2011.
(**) The years open to review by tax authorities for this entity are December 2008, from January to May 2010 and from June to December 2011.

Up to date, Zemex LLC is an inactive subsidiary with no debts to fiscal authorities of United States of America and Canada (countries where Zemex LLC had operations until 2007).

 

F-56


Table of Contents

Notes to the consolidated financial statements (continued)

 

Due to possible interpretations that the tax authorities may give to legislation in effect, it is not possible to determine whether or not any of the tax audits will result in increased liabilities for the Group. For that reason, tax or surcharge that could arise from future tax audits would be applied to the income of the period in which it is determined. However, in management’s opinion, any possible additional payment of taxes would not have a material effect on the consolidated financial statements as of December 31, 2012 and 2011.

Environmental matters

The Group’s exploration and exploitation activities are subject to environmental protection standards.

Environmental remediations -

Law No. 28271 regulates environmental liabilities in mining activities. This Law has the objectives of ruling the identification of mining activity’s environmental liabilities and financing the remediation of the affected areas. According to this law, environmental liabilities refer to the impact caused to the environment by abandoned or inactive mining operations.

In compliance with the above-mentioned laws, the Group presented preliminary environmental studies (PES), declaration of environmental studies (DES) and Environmental Adaptation and Management Programs (EAMP) for its mining units.

The Peruvian authorities approved the EAMP presented by the Group for its mining units and exploration projects. A detail of plans approved is presented as follows:

 

Project unit    Resource   

Resolution

Number

   Year of
approval
   Program
approved
   Year expense  
               2012      2011      2010  
                         S/.(000)      S/.(000)      S/.(000)  

Tembladera

   Quicklime    RD.019-97-EM/DGM    1997    EAMP      312         395         106   

Rioja

   Quicklime    OF.28-2002-MITINCI    2002    EAMP      280         228         323   

Bayovar

   Diatomite    OF.5757-01/PRODUCE    2011    DES      171         24         —     

Bayovar

   Phosphoric rock    OF.02121-2009/PRODUCE    2009    DES      32         —           69   

Bongara

   Zinc    RD.176-2007-MEN/AAM    2007    PES      31         90         138   
              

 

 

    

 

 

    

 

 

 
                 826         737         636   
              

 

 

    

 

 

    

 

 

 

The Group incurs environmental expenditures related to existing environmental damages caused by current operations. These expenditures which amounted to S/.826,000 during 2012 (2011: S/.737,000 and 2010: S/.636,000), are expensed in the year the expenditure is incurred and are presented in administrative expenses caption, see note 19. As of December 31, 2012 and 2011, the Group did not have liabilities in connection with these expenditures since they were all settled before year-end.

 

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Table of Contents

Notes to the consolidated financial statements (continued)

 

Rehabilitation provision -

Additionally, Law No. 28090 regulates the obligations and procedures that must be met by the holders of mining activities for the preparation, filing and implementation of Mine Closure Plans, as well as the establishment of the corresponding environmental guarantees to secure fulfillment of the investments that this includes, subject to the principles of protection, preservation and recovery of the environment. In connection with this obligation, as of December 31, 2012 and 2011, the Group maintains a provision for closure of mining units and exploration projects amounting to S/.4,909,000. The Group believes that this liability is adequate to meet the current environmental protection laws approved by the Ministry of Energy and Mines. Refer to note 13.

Legal claim contingency

Some third parties have commenced actions against the Group in relation with its operations which claims in aggregate represent S/.4,608,000. Of this amount, S/.1,223,000 corresponded to a tax originated by the import of coal, S/.1,087,000 corresponded to labor claims from former employees and S/.2,298,000 related to the tax assessments received from the Tax Administration corresponding to the income tax of 2009, which was reviewed by the Tax Authority during 2012.

Management expects that these claims will be resolved within the next five years based on prior experience; however, the Group cannot assure that these claims will be resolved within this period because the authorities do not have a maximum term to resolve cases. The Group has been advised by its legal counsel that it is only possible, but not probable, that these actions will succeed. Accordingly, no provision for any liability has been made in these consolidated financial statements as of December 31, 2012 and 2011.

 

28. Financial risk management, objectives and policies

The Group’s principal financial liabilities comprise loans and borrowings, bank overdraft, trade payables and other payables. The main purpose of these financial liabilities is to finance the Group’s operations. The Group has cash and term deposits and trade and other receivables that arise directly from its operations. The Group also holds available-for-sale financial investments.

The Group is exposed to market risk, credit risk and liquidity risk.

The Group’s senior management oversees the management of these risks. The Group’s senior management is supported by financial management that advises on financial risks and the appropriate financial risk governance framework for the Group. The financial management provides assurance to the Group’s senior management that the Group’s financial risk-taking activities are governed by appropriate policies and procedures and that financial risks are identified, measured and managed in accordance with group policies and group risk appetite.

 

F-58


Table of Contents

Notes to the consolidated financial statements (continued)

 

The Board of Directors reviews and agrees policies for managing each of these risks which are summarized below.

Market risk -

Market risk is the risk that the fair value of future cash flows of a financial instrument will fluctuate because of changes in market prices. Market prices comprise four types of risk: interest rate risk, currency risk, commodity price risk and other price risk. Financial instruments affected by market risk include loans and borrowings, bank overdraft, deposits and available-for-sale financial investments.

The sensitivity analyses shown in the following sections relate to the consolidated position as of December 31, 2012 and 2011.

The sensitivity analyses have been prepared on the basis that the amount of net debts, the ratio of fixed to floating interest rate of the debt and the proportion of financial instruments in foreign currencies are all constant at the date of the consolidated statement of financial position.

Interest rate risk -

Interest rate risk is the risk that the fair value or future cash flows of a financial instrument will fluctuate because of changes in market interest rates.

As of December 31, 2012 and 2011 all of the Group’s borrowings are at a fixed rate of interest; consequently, we will not disclose interest rate sensitivity because the Group had no floating rates loans as of December 31, 2012 and 2011.

Foreign currency risk -

Foreign currency risk is the risk that the fair value or future cash flows of a financial instrument will fluctuate because of changes in foreign exchange rates. The Group’s exposure to the risk of changes in foreign exchange relates primarily to the Group’s operating activities (when revenue or expense is denominated in a different currency from the Group’s functional currency).

The Group does not hedge its exposure to the currency risk.

Foreign currency sensitivity

The following table demonstrates the sensitivity to a reasonably possible change in the US dollar exchange rate, with all other variables held constant, of the Group’s profit before income tax (due to changes in the fair value of monetary assets and liabilities).

 

2012   

Change in

US$ rate

    

Effect on profit

before tax

 
U.S. Dollar    %      S/.(000)  
     +5         786   
     +10         1,572   
     -5         (786
     -10         (1,572

 

F-59


Table of Contents

Notes to the consolidated financial statements (continued)

 

2011   

Change in

US$ rate

    

Effect on profit

before tax

 
U.S. Dollar    %      S/.(000)  
     +5         2,358   
     +10         4,716   
     -5         (2,358
     -10         (4,716

Commodity price risk -

The Group is affected by the volatility of certain commodities.

Its operating activities require a continuous supply of coal. The Group does not use forward commodity purchase contracts to hedge the purchase price of coal. Based on a 2-month forecast about the required coal supply, the Group signs fixed - price agreements every two months.

Commodity price sensitivity

The following table shows the effect of price changes from coal:

 

    

Change in

year-end price

    

Effect on profit

before tax

 
     %      S/.(000)  

2012

     
     +10         (2,064
     -10         2,064   

2011

     
     +10         (1,256
     -10         1,256   

Equity price risk -

The Group’s listed and unlisted equity securities are susceptible to market price risk arising from uncertainties about future values of the investment securities. The Group’s Board of Directors reviews and approves all equity investment decisions.

At the reporting date, the exposure to listed and unlisted equity securities at fair value was S/.34,887,000. A decrease of 10% on Lima stock exchange (BVL) market index could have an impact of approximately S/.3,489,000 on the income or equity attributable to the Group, depending on whether or not the decline is significant or prolonged. An increase of 10% in the value of the listed securities would only impact equity but would not have an effect on profit or loss.

Credit risk -

Credit risk is the risk that a counterparty will not meet its obligations under a financial instrument or customer contract, leading to a financial loss. The Group is exposed to a credit risk from its operating activities (primarily for trade receivables) and from its financing activities, including deposits with banks and financial institutions, foreign exchange transactions and other financial instruments.

 

F-60


Table of Contents

Notes to the consolidated financial statements (continued)

 

Trade receivables

Customer credit risk is managed by each business unit subject to the Group’s established policy, procedures and control relating to customer credit risk management. Credit quality of the customer is assessed and individual credit limits are defined in accordance with this assessment. Outstanding customer receivables are regularly monitored and in specific cases are covered by letters of credit. At December 31, 2012, the Group had 8 customers (2011: 6 customers) that owed the Group more than S/.15,000,000 and accounted for approximately 36% (2011: 32%) for all receivables owing. There were 21 customers (2011: 18 customers) with balances greater than S/.700,000 each and accounting for just over 56% (2011:63%) of the total amounts receivable.

The requirement for an allowance for doubtful account is analyzed at each reporting date on an individual basis for major clients.

The maximum exposure to credit risk at the reporting date is the carrying value of each class of financial assets disclosed in Note 7.

Financial instruments and cash deposits

Credit risk from balances with banks and financial institutions is managed by the Group’s treasury department in accordance with the Group’s policy. Investments of surplus funds are made only with approved counterparties and within credit limits assigned to each counterparty. Counterparty credit limits are reviewed by the Group’s Board of Directors on an annual basis, and may be updated throughout the year subject to approval of the Group’s financial management. The limits are set to minimize the concentration of risks and therefore mitigate financial loss through potential counterparty’s failure. The Group’s maximum exposure to credit risk for the components of the consolidated statement of financial position is the carrying amounts as illustrated in Note 6.

Liquidity risk -

The Group monitors its risk of shortage of funds using a recurring liquidity planning tool.

The Group’s objective is to maintain a balance between continuity of funding and flexibility through the use of bank loans, debentures and finance leases contracts. Access to sources of funding is sufficiently available and debt maturing within 12 months can be rolled over with existing lenders.

 

F-61


Table of Contents

Notes to the consolidated financial statements (continued)

 

The table below summarizes the maturity profile of the Group’s financial liabilities based on contractual undiscounted payments:

 

     On demand      Less than 3
months
     3 to 12
months
    

1 to 5

years

     Total  
     S/.(000)      S/.(000)      S/.(000)      S/.(000)      S/.(000)  

As of December 31, 2012

              

Interest-bearing loans and bank overdraft

     13,255         —           9,629         192,571         215,455   

Future interests

     —           3,256         9,767         32,670         45,693   

Trade and other payables

     232         108,403         8,738         —           117,373   

As of December 31, 2011

              

Interest-bearing loans and borrowings

     —           29,599         109,450         451,545         590,594   

Future interests

     —           7,469         23,733         56,446         87,648   

Trade and other payables

     230         115,361         9,763         —           125,354   

Capital management -

The primary objective of the Group’s capital management is to ensure that it maintains a strong credit rating and healthy capital ratios in order to support its business and maximize shareholder value.

The Group manages its capital structure and makes adjustments to it in light of changes in economic conditions. To maintain or adjust the capital structure, the Group may adjust the dividend payment to shareholders, return capital to shareholders or issue new shares.

No changes were made in the objectives, policies or processes for managing capital during the years ended December 31, 2012 and December 31, 2011.

 

F-62


Table of Contents

Notes to the consolidated financial statements (continued)

 

29. Fair value of financial instruments

Set out below is a comparison by class of the carrying amounts and fair values of the Group’s financial instruments that are carried in the consolidated financial statements.

 

     Carrying amount      Fair value  
     2012      2011      2012      2011  
     S/.(000)      S/.(000)      S/.(000)      S/.(000)  

Financial assets

           

Cash and term deposits

     473,785         363,279         473,785         363,279   

Trade and other receivables

     68,060         46,131         68,060         46,131   

Available-for- sale financial investments

     34,887         22,074         34,887         22,074   

Call options

     —           —           —           —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

     576,732         431,484         576,732         431,484   
  

 

 

    

 

 

    

 

 

    

 

 

 

Financial liabilities

           

Trade and other payables

     117,373         125,354         117,373         125,354   

Financial obligations :

           

Obligations under finance leases

     —           60,708         —           58,799   

Loans at fixed rates

     202,200         529,886         169,079         472,870   

Bank overdrafts

     13,255         —           13,255         —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

     332,828         715,948         299,707         657,023   
  

 

 

    

 

 

    

 

 

    

 

 

 

The fair values of the financial assets and liabilities are included at the amount at which the instrument could be exchanged in a current transaction between willing parties, other than in a forced or liquidation sale. The following methods and assumptions were used to estimate the fair values:

 

   

Cash and term deposits and trade and other receivables and bank overdrafts, approximate their carrying amounts largely due to the short-term maturities of these instruments.

 

   

Fair value of interest-bearing loans and borrowings is estimated by discounting future cash flows using rates currently available for debt on similar terms, credit risk and remaining maturities.

 

   

Fair value of available-for-sale investments is derived from quoted market prices in active markets.

 

   

Fair value of unquoted available-for-sale financial investments is estimated using a technique for which all inputs which have a significant effect on the recorded fair value are observable, either directly or indirectly, see note 9(b).

 

F-63


Table of Contents

Notes to the consolidated financial statements (continued)

 

Fair value hierarchy

The Group uses the following hierarchy for determining and recording, if applicable, the fair value of financial instruments by valuation technique:

Level 1: quoted (unadjusted) prices in active markets for identical assets or liabilities.

Level 2: other techniques for which all inputs which have a significant effect on the recorded fair value are observable, either directly or indirectly.

Level 3: valuation techniques (no observable market value).

As of 31 December 2012 and 2011, the Group held the following instruments carried at fair value on the consolidated statement of financial position:

 

     2012      2011  
     S/.(000)      S/.(000)  

Available-for-sale financial investments:

     

Level 1

     831         526   

Level 2

     34,056         21,548   

Level 3

     —           —     
  

 

 

    

 

 

 

Total

     34,887         22,074   
  

 

 

    

 

 

 

During the reporting period ending December 31, 2012, there were no transfers between Level 1 and Level 2 fair value measurements.

 

F-64


Table of Contents

Notes to the consolidated financial statements (continued)

 

30. Segment information

For management purposes, the Group is organized into business units based on their products and activities and have three reportable segments as follows:

 

   

Production and marketing of cement, concrete and blocks in the northern region of Peru.

 

   

Sale of construction supplies in the northern region of Peru.

 

   

Production and marketing of quicklime in the northern region of Peru.

No operating segments have been aggregated to form the above reportable operating segments.

Management monitors the profit before income tax of each business unit separately for purposes of making decisions about resource allocation and performance assessment. Segment performance is evaluated based on profit before income tax and is measured consistently with profit before income tax in the consolidated financial statements.

Transfer prices between operating segments are on an arm’s length basis in a manner similar to transactions with third parties.

 

     Revenues
from
external
customers
     Revenues
from
inter
segments
    Total
revenue
    Gross
margin
    Net gain
on sale of
land and
mining
concession
     Provision
for
impairment
of zinc
mining
assets
    Other
operating
income,
net
    Administrative
expenses
    Selling and
distribution
expenses
    Finance
costs
    Finance
income
    Gain from
exchange
difference,
net
    Profit
before
income
tax
    Income
tax
    Profit
for the
period
 
     S/.(000)      S/.(000)     S/.(000)     S/.(000)     S/.(000)      S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)     S/.(000)  

2012

                                

Cement, concrete and blocks

     972,241         1,415        973,656        440,502        —           —          3,326        (169,157     (27,123     (22,250     20,529        (431     245,396        (78,905     166,491   

Construction supplies

     143,165         980        144,145        4,898        —           —          354        (2,669     (2,406     —          56        (21     212        (68     144   

Quicklime

     52,738         —          52,738        12,898        —           —          43        (10,051     (820     (1,520     1,441        (23     1,968        (632     1,336   

Other

     1,664         2,567        4,231        (1,548     —           —          3,983        (21,190     (516     (1     1,300        (261     (18,233     5,862        (12,371

Adjustments and eliminations

     —           (4,962     (4,962     —          —           —          —          —          —          —          —          —          —          —          —     
  

 

 

    

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Consolidated

     1,169,808         —          1,169,808        456,750        —           —          7,706        (203,067     (30,865     (23,771     23,326        (736     229,343        (73,743     155,600   
  

 

 

    

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

2011

                                

Cement, concrete and blocks

     802,959         2,497        805,456        408,760        —           —          8,530        (168,220     (19,682     (19,389     4,770        1,212        215,981        (79,820     136,161   

Construction supplies

     143,334         5,822        149,156        4,471        —           —          664        (4,814     (2,479     (186     92        61        (2,191     810        (1,381

Quicklime

     45,859         —          45,859        12,106        —           —          401        (10,310     (730     (1,132     74        83        492        (182     310   

Other

     2,818         2,519        5,337        118        —           (95,994     (257     (12,852     (816     (953     200        120        (110,434     40,813        (69,621

Adjustments and eliminations

     —           (10,838     (10,838     —          —           —          —          —          —          2,441        (2,441     —          —          —          —     
  

 

 

    

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Consolidated

     994,970         —          994,970        425,455        —           (95,994     9,338        (196,196     (23,707     (19,219     2,695        1,476        103,848        (38,379     65,469   
  

 

 

    

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

2010

                                

Cement, concrete and blocks

     728,319         2,722        731,041        398,350        —           —          14,534        (128,255     (13,526     (13,727     4,968        2,209        264,553        (84,174     180,379   

Construction supplies

     96,072         —          96,072        2,804        —           —          207        (2,509     (1,798     (113     53        63        (1,293     411        (882

Quicklime

     57,695         —          57,695        20,944        —           —          1,073        (13,741     (501     (1,792     490        141        6,614        (2,102     4,512   

Other

     15,961         —          15,961        (3,041     75,887         —          847        (14,192     (676     (2,206     566        155        57,340        (18,240     39,100   

Adjustments and eliminations

     —           (2,722     (2,722     —          —           —          —          —          —          2,800        (2,800     —          —          —          —     
  

 

 

    

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Consolidated

     898,047         —          898,047        419,057        75,887         —          16,661        (158,697     (16,501     (15,038     3,277        2,568        327,214        (104,105     223,109   
  

 

 

    

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

F-65


Table of Contents

Notes to the consolidated financial statements (continued)

 

     Segment
assets
     Other
assets
    

Total

assets

     Operating
liabilities
     Capital
expenditure
     Depreciation and
amortization
    Provision of
inventory net
realizable value
and obsolescence
 
     S/.(000)      S/.(000)      S/.(000)      S/.(000)      S/.(000)      S/.(000)     S/.(000)  

2012

                   

Cement, concrete and blocks

     1,929,599         —           1,929,599         445,985         215,647         (45,738     (830

Construction supplies

     23,122         —           23,122         33,728         15         (71     —     

Quicklime

     133,748         —           133,748         —           —           (1,607     —     

Other

     261,968         34,887         296,855         9,496         54,570         (538     (2,448
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Consolidated

     2,348,437         34,887         2,383,324         489,209         270,232         (47,954     (3,278
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

2011

                   

Cement, concrete and blocks

     1,623,726         —           1,623,726         854,065         191,356         (42,316     —     

Construction supplies

     12,741         —           12,741         14,279         22         (854     —     

Quicklime

     139,855         —           139,855         5,896         6,377         (2,447     —     

Other

     149,429         22,074         171,503         —           43,460         (1,325     —     
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Consolidated

     1,925,751         22,074         1,947,825         874,240         241,215         (46,942     —     
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

 

F-66


Table of Contents

Notes to the consolidated financial statements (continued)

 

Revenues from one customer, arising from sales within the quicklime segment, amounted to S/.21,105,000, S/.16,378,000 and S/.36,213,000 in 2012, 2011 and 2010, respectively.

Capital expenditure consists of S/.271,168,000 invested from cash flows in 2012 (S/.241,215,000 in 2011 and S/.144,973,000 in 2010), corresponding to additions of property, plant and equipment, exploration and evaluation assets and other minor non-current assets. During 2012 and 2011 there were no long-term assets purchases under finance leases. Inter-segment revenues are eliminated on consolidation.

The “other” column includes activities that do not meet the threshold for disclosure under IFRS 8.13 and represent non-material operations of the Group (including phosphates, zinc and other).

Other assets

As of December 31, 2012 corresponds to the available-for-sale investments caption for approximately S/.34,887,000 (S/.22,074,000 as of December 31, 2011) which is not allocated to a segment.

Geographic information

All revenues are from Peruvian clients.

As of December 31, 2012, all non-current assets are located in Peru. Until 2011, the Group had a land of the subsidiary Zemex LLC. amounting to S/.2,312,000 that was located in United States Of America (its only non-current asset). This land was sold during 2012 for S/.6,220,000, resulting in a net gain of S/.3,992,000, which was recorded in “other operating income, net” caption of the consolidated income statements.

 

31. Subsequent events

The general shareholder’s meeting held on January 7, 2013, approved that the Company complete a financing transaction. In connection with this, the Board of Directors’ Meeting held on January 24, 2013 agreed to issue Senior Notes through a private offering under Rule 144A and Regulation S of the U.S. Securities Act of 1933. Also it was agreed to list these securities in the Ireland Stock Exchange. Consequently, on February 1, 2013, the Company issued Senior Bonds by US$300,000,000, with an interest rate of 4. 5% , and maturity 2023, resulting total net proceeds of US$295,800,000. The Company intends to use the net proceeds from the offering to prepay certain of its existing debt and for capital expenditures incurred in connection with its cement business. The Senior Notes will be guaranteed by the following Company’s subsidiaries: Cementos Selva S.A., Distribuidora Norte Pacasmayo S.R.L., Empresa de Transmision Guadalupe S.A.C. and Dinoselva Iquitos S.A.C.

On February 11, 2013, the Group prepaid the loan maintained with BBVA Banco Continental amounting to S/.202,200,000.

 

F-67

EXHIBIT 4.1

EQUIPMENT SUPPLY CONTRACT

BETWEEN

Cementos Pacasmayo S.A.A.

Calle La Colonia 150

Urbanización El Vivero, Monterrico

Lima 33

Peru

AND

Loesche GmbH

Hansaallee 243

40549 Düsseldorf

Germany


TABLE OF CONTENTS

 

CLAUSE 1.   OBJECT    03
CLAUSE 2.   CONTRACTUAL DOCUMENTS    03
CLAUSE 3.   DURATION TIME, DELIVERY SCHEDULE AND TERMS OF DELIVERY    04
CLAUSE 4.   PRICE AND PAYMENT TERMS    04
CLAUSE 5.   THE PURCHASER’S OBLIGATIONS    06
CLAUSE 6   THE SUPPLIER’S OBLIGATIONS    07
CLAUSE 7   THE SUPPLIER’S WARRANTIES    08
CLAUSE 8   INSPECTION AND TESTS AT SUPPLIER’S PLANT    09
CLAUSE 9.   PACKING, TRANSPORTATION AND INSURANCE    10
CLAUSE 10.   TECHNICAL ACCEPTANCE OF THE EQUIPMENT    10
CLAUSE 11.   ASSIGNMENT AND SUBCONTRACTING    11
CLAUSE 12.   INTELLECTUAL PROPERTY RIGHTS    11
CLAUSE 13.   CONFIDENTIALITY    12
CLAUSE 14.   RESPONSIBILITY AND LIQUIDATED DAMAGES    12
CLAUSE 15.   VARIATIONS AND SEVERABILITY    13
CLAUSE 16.   FORCE MAJEURE    13
CLAUSE 17.   TERMINATION    14
CLAUSE 18.   INSURANCE    14
CLAUSE 19.   NOTICES    14
CLAUSE 20.   GOVERNING LAW AND DISPUTE RESOLUTION    14
CLAUSE 21.   COMING INTO FORCE OF THE CONTRACT    14


This Equipment Supply Contract (hereinafter called “Contract”) is made and entered on September 28 th , 2012 by and between Cementos Pacasmayo S.A.A. , a company duly organized under the laws of Peru, having its principal place of business at Calle La Colonia N° 150, Urb. El Vivero, Santiago de Surco, Lima, Peru (hereinafter called “PURCHASER”), and Loesche GmbH having its head offices at Hansaallee 243, 40549 Düsseldorf, Germany, (hereinafter called “SUPPLIER”).

The PURCHASER and THE SUPPLIER are hereinafter individually referred to as “Party” and collectively referred to as “Parties”.

WHEREAS:

 

I. The PURCHASER owns a plant site located in Piura, Peru.

 

II. The PURCHASER is interested in acquiring certain equipment from THE SUPPLIER, said equipment to be installed and used at the mentioned plant site for the new cement plant at Piura, Peru with a capacity of 3000 tpd of clinker and 230 tph of cement grinding capacity (hereinafter referred to as “PROJECT”);

 

III. The Parties, having agreed upon such supply, wish to formalize their purpose;

NOW, THEREFORE , the Parties have agreed to enter into this Contract, which shall be governed by the following terms and conditions:

 

Clause 1. OBJECT

 

1.1 The object of this Contract is the supply by Loesche GmbH of the Equipment mentioned at Annex “B” and further described in the technical specification in Annex E attached hereto (hereinafter referred to as “EQUIPMENT”) and the Basic and Detailed Engineering for the EQUIPMENT, included in Annex E (hereinafter referred to as “ENGINEERING”), for a new cement plant located in Piura, Peru.

 

Clause 2. CONTRACTUAL DOCUMENTS

 

2.1 The following Annexes, enclosed to this Contract, shall constitute an integral part hereof:

 

  2.1.1 Annex A: Pricelist

 

  2.1.2 Annex B: Scope of supply

 

  2.1.3 Annex C: Supervision of erection and commissioning

 

  2.1.4 Annex D: Time Schedule

 

  2.1.5 Annex E: Technical Specification

 

  2.1.6 Annex F: Technical Guarantees

 

  2.1.7 Annex G: Material Investigation

 

  2.1.8 Annex H: Advanced Payment and Performance Bond

 

  2.1.9 Annex I: Affidavit regarding the ENGINEERING

 

2.2 In the event of dissent or controversy between the terms of this Contract and those of the documents listed above, the terms of this Contract shall prevail.

 

2.3 In the event of controversy between the terms and conditions of the Annexes hereto, the terms of the Annexes will prevail in the numeric order of precedence set forth above, except for the “Technical Specification” (Annex E) and “Technical Guarantees” (Annex F) which will always prevail.


Clause 3. DURATION TIME, DELIVERY SCHEDULE AND TERMS OF DELIVERY

 

3.1 Delivery Schedule of the EQUIPMENT:

 

   

For Mechanical Equipment: 10 - 15 months from coming into force of the contract according to Clause 21, as detailed in Annex “D”.

 

   

For Electrical Equipment: 10 - 18 months from coming into force of the contract according to Clause 21, as detailed in Annex “D”.

 

3.2 Terms of Delivery of the EQUIPMENT

FOB port of origin according to INCOTERMS 2010.

 

3.3 Delivery Schedule of the ENGINEERING:

 

   

Basic and Detailed: 1 - 17 months from coming into force of the contract according to Clause 21, as detailed in Annex “E”.

 

Clause 4. PRICE AND PAYMENT TERMS

 

4.1 For the supply of the EQUIPMENT and the ENGINEERING, the PURCHASER shall pay to the SUPPLIER the price of € 24,967,200.00 (Twenty Four Million, Nine Hundred and Sixty-Seven Thousand and Two Hundred Euros) (hereinafter referred to as the “Contract Price”), according the following:

 

   

For the EQUIPMENT: € 24,218,700.00 (Twenty Four Million, Two Hundred and Eighteen Thousand and Seven Hundred Euros) (herein after referred to as the “EQUIPMENT Price”).

 

   

For the ENGINEERING: € 748,500.00 (Seven Hundred and Forty-Eight Thousand and Five Hundred Euros) (herein after referred to as the “ENGINEERING Price”).

The Parties agree that the prices for the supply of the EQUIPMENT and the ENGINEERING are fixed, and shall remain valid and invariable until the fulfilment of all SUPPLIER’s obligations, according to the terms of this Contract.

 

  4.1.1 FOB prices for each section of the Plant (EQUIPMENT) can be found at Annex “A”.

 

  4.1.2 The scope of the ENGINEERING can be found at Annex “E”.

 

4.2 Payment Conditions

For values in Euro to be paid to the SUPPLIER:

30% of the ENGINEERING Price, payable within 15 days after signing the Contract, against submittal of invoice and the Advance Payment Bond as per Annex H. This Bond shall be valid and effective until the completion of the supply of the ENGINEERING and shall be automatically and proportionally reduced without the prior approval of the PURCHASER of the value of each commercial invoice issued to the PURCHASER under this Contract.

30% of the EQUIPMENT Price, payable within 15 days after signing the Contract, against submittal of invoice and the Advance Payment Bond as per Annex H. This Bond shall be valid and effective until the completion of the supply of the EQUIPMENT and shall be automatically and proportionally reduced without the prior approval of the PURCHASER of the value of each commercial invoice issued to the PURCHASER under this Contract.


70% of the Contract Price, payable out of a Letter of Credit (L/C), according to the following:

 

   

For the EQUIPMENT Price, against presentation of SUPPLIER’s documents of dispatch, or warehouse receipt, pro rata supplies, and the Performance Bond up to the 10% of the Contract Price, as per Annex H, for the last major shipment. This Bond shall be valid and effective until the issuance of the Certificate of Technical Acceptance by the PURCHASER However, this Performance Bond shall expire at the latest 48 months after effectiveness of this Contract.

Documents of dispatch means: Bill of Lading or Airway Bill or Warehouse Receipt, Packing List and Invoice. Documents of dispatch shall be delivered by the SUPPLIER to the PURCHASER via-email, immediately after the departure of the carrying vessel from the Port of Shipment.

 

   

For the ENGINEERING Price, against the PURCHASER’s confirmation receipt of the ENGINEERING documentation to the SUPPLIER. If the SUPPLIER does not receive the PURCHASER’s confirmation receipt within 15 days from the delivery of ENGINEERING documentation, the SUPPLIER shall be able to present the courier delivery note under the L/C, instead of PURCHASER’s confirmation receipt. ENGINEERING documentation means: General Layout and General Arrangement Drawings. Consequently, the 70% of the ENGINEERING Price, shall be paid by the PURCHASER in two (02) tranches:

 

   

€ 261,975.00 (Two Hundred and Sixty-One Thousand and Nine Hundred and Seventy-Five Euros) for the General Layout.

 

   

€ 261,975.00 (Two Hundred and Sixty-One Thousand and Nine Hundred and Seventy-Five Euros) for the General Arrangement Drawings.

To cover the payment of 70% of the Price Contract, within 30 days after signing the Contract, the PURCHASER shall open one irrevocable Letter of Credit (L/C), in the amount of € 17,477,040.00 (Seventeen Million, Four Hundred and Seventy-Seven Thousand and Forty Euros) in favor of the SUPPLIER. The L/C shall be advised and confirmed by a First Class International Bank in Germany, acceptable to the SUPPLIER.

 

4.3 Each payment not covered by the Letter of Credit shall be effected to the following bank account:

 

For Loesche GmbH
Stadtsparkasse Düsseldorf
SWIFT/BIC Code : DUSSDEDDXXX
Bank account no.: 10025005
BLZ 300 501 10
IBAN : DE25 3005 0110 0010 0250 05

 

4.4 Taxes and Duties

All taxes until FOB port of origin are included in the supply. Local taxes or duties, such as but not limited, to customs clearance, import taxes, any Peruvian withholding tax and IVA are expressly not included and shall be borne by the PURCHASER.


4.5 Invoices

4.5.1 SUPPLIER shall deliver to the PURCHASER two (02) originals and two (02) copies of each respective invoice for each payment milestone as provided for in Clause 4.2 above for the amounts indicated above.

4.5.2 The invoices issued in connection with the payment milestones set forth in Clause 4.2 above shall state the following:

 

   

For the EQUIPMENT:

 

   

SUPPLIER’s Name and Address;

 

   

EQUIPMENT’s description;

 

   

Unit price and total amount;

 

   

Currency.

 

   

For the ENGINEERING:

 

   

SUPPLIER’s Name and Address;

 

   

ENGINEERING description;

 

   

Unit price;

 

   

Total amount;

 

   

Peruvian withholding Tax (15% of total amount);

 

   

Net Price;

 

   

Currency.

4.6 All copies of the invoices shall be issued to the PURCHASER and sent to the address indicated in Clause 19.1 within five (5) days from the issuance date of the documents.

 

Clause 5. THE PURCHASER’S OBLIGATIONS

The PURCHASER shall be obliged to:

 

5.1 Provide THE SUPPLIER, in due time, with any reasonable information necessary for the supply of the EQUIPMENT. The PURCHASER shall, within ten (10) days from its respective receipt, approve the documents provided by THE SUPPLIER related to the Contract and, in case such documents are deemed not to be in accordance with THE SUPPLIER’S obligations, the PURCHASER shall return the documents to THE SUPPLIER, clearly stating the reasons for such disagreement, and require its correction within fifteen (15) days from the date of receipt of the documents at the SUPPLIER’S office.

In case the PURCHASER does not disagree with the documents by returning them or does not expressly approve them within the period stated above, all documents sent by THE SUPPLIER shall be deemed approved.

The aforementioned rules shall not apply for amendments, additions, variations or modifications of any term provision of this Contract. In such cases, Clause 15 shall apply.

 

5.2 Pay the price as established in Clause 4.

 

5.3 Provide all requisites and fulfil all preconditions expressly set in Annex E and F, which are necessary to enable THE SUPPLIER to comply with the performance warranties as stipulated in the Contract.

 

5.4 Coordinate the execution of the supply to be conducted by the SUPPLIER with other supplies and works related to the PROJECT, except the supplies and works performed by Thyssenkrupp Polysius AG and affiliates companies.


5.5 Notify THE SUPPLIER in writing and within 15 days after signing the Contract, of any internal rules and/or regulations as well as any particular proceedings and or structures which the PURCHASER wishes to apply for the execution of the Contract. In the event the SUPPLIER is not being notified in accordance with this Clause 5.5, the SUPPLIER shall have no obligation with regard to the adherence to any such rules, regulations, proceedings and/or structures as mentioned above.

 

5.6 Obtain and maintain, at its own cost, any and all licenses and/or authorizations which may be necessary for the execution of the PROJECT.

 

5.7 Execute the erection, commissioning and performance test work, according to Annex C, which will become an integral part of a future “Erection Supervision and Commissioning Services Agreement” to be entered by and between the PURCHASER and the SUPPLIER.

 

5.8 PURCHASER shall be responsible to name the vessel for FOB delivery according to 3.2 within 21 days of the SUPPLIER’S notice of readiness for dispatch. In the event no vessel has been named within the above period, the SUPPLIER shall be entitled to put the respective part of the EQUIPMENT in storage and receive the respective payment according to 4.2 against presentation of warehouse receipt.

 

Clause 6. THE SUPPLIER’S OBLIGATIONS

 

6.1. Supply the EQUIPMENT in accordance with the specifications described in Annex A, B, D, E and F. The parties agree that the following items are excluded from the EQUIPMENT: buildings, foundations, backing, pipelines, insulation, painting (except first primer), utility lines for cooling water, compressed air, gas, oil, electrical fittings and installations, cables, transmitters for field instrumentation, measurement and control systems, first oil fillings, welding electrodes, grouting material for mill gearbox, fitting, civil design, construction, scaffolding, lifting equipment, earth works, piling, lighting, fencing, offices, stores, canteens, safety equipment, medical equipment and firefighting equipment, and all other supplies and services which are not explicitly specified in this CONTRACT and Annex E.

 

6.2 Provide the necessary technical documents according to the requirements of the Contract, including manuals, projects, designs, plans, related to the supply, operation and maintenance of the EQUIPMENT, all of which shall be in the English and/or Spanish language.

 

6.3 Issue the Advance Payment Bond and the Performance Bond as per Clause 4.2 and Annex “H”.

 

6.4 Issue of the Affidavit regarding the ENGINEERING, mentioned in Annex I.

 

Clause 7. WARRANTIES

 

7.1 Warranty regarding the material

 

  7.1.1 The SUPPLIER hereby warrants that the EQUIPMENT shall be new and free from any defects in workmanship and materials, applying to the standards set forth in this Contract and in the Annexes hereto.


  7.1.2 The warranty obligations shall be effective against defects in workmanship and materials or wrong instructions by the SUPPLIER’s Supervisory Personnel for: 12 months after issuance of the Certificate of Technical Acceptance by the PURCHASER from the date of commissioning, however not longer than 48 months after coming into force of the Contract according to Clause 21, whichever occurs first (“WARRANTY PERIOD”). In the event that the delivery will be delayed due to reasons attributable to the SUPPLIER, the warranty latest date shall be prolonged according to the duration of the delay. Notwithstanding the above, the PURCHASER’s rights to claim the Liquidated Damages set forth in Clause 14 shall not be affected hereby.

Within the WARRANTY PERIOD, the SUPPLIER undertakes, for his scope of supply and if requested by the PURCHASER in writing, to replace, modify, and/or repair pieces or components of the EQUIPMENT, which are found defective due to reasons of fabrication or material, at its own option, if possible at the place of operation, provided that those defects of the pieces of the equipment or components are not the consequence of natural wear, misuse by the PURCHASER or third persons, or pieces and components which have been operated and/or stored in discordance with the operation and maintenance manuals of the SUPPLIER or the defects have occurred due to any act of negligence by the PURCHASER or by third persons, or due to chemical or electrolytic influences. Wear and tear parts are also not included in the warranties. The request referred to above shall contain the nature of the nonconformity with the technical specification as agreed in Annex E.

The parts, pieces or components of the EQUIPMENT which have been removed and replaced within the WARRANTY PERIOD as stipulated above shall become the property of the SUPPLIER and the warranty period for replaced and repaired parts shall be one (1) year from the date of repair or replacement, however not longer than 48 months after coming into force of the Contract according to Clause 21, whichever occurs first.

 

7.2 Liability for Defective Engineering

During the WARRANTY PERIOD as per item 7.1.2 the SUPPLIER’S sole obligation regarding faulty engineering shall be to correct by replacement any error or omission detected in the drawings, manuals and catalogues which have been supplied as per Annex E within 60 days as from the date the SUPPLIER have received the respective documents from the PURCHASER as per Clause 5.1. However, it shall be expressly agreed that the SUPPLIER shall have no liability for errors or omissions detected in the documents which have been supplied as per Annex “A” unless such error or omission is attributable to the SUPPLIER, and not based on incorrect information, drawings or documents provided by the PURCHASER.

 

7.3 Warranties for the Performance of the EQUIPMENT

Performance warranties and its respective liquidated damages in case of non-fulfilment are stipulated on Annex F of this Contract.

The Parties agree that if the specified service life of the grinding parts is not achieved, then the SUPPLIER shall credit the difference between the agreed and the achieved service life in accordance with the comparative cost proportion for a new set of grinding parts FOB European port in accordance with INCOTERMS 2010. However, this only applies if the PURCHASER attests the actual service life by an operating hours counter or similar recordings.

 

7.4 It is expressly agreed that the PURCHASER shall not be entitled to claim any further rights and/or remedies regarding the non-fulfilment of the warranties of the EQUIPMENT, except as provided for in this Clause 7, Clause 10 and Annex F of this Contract.


7.5 The warranties stipulated in this Clause 7 shall be exclusive and conclusive and no further warranty obligations, whether express or implied shall apply nor shall any of the above given warranty be construed as any special warranty for merchantability or satisfactory quality or fitness for a particular purpose. Furthermore, the warranties stipulated above shall apply only if the EQUIPMENT has been erected and commissioned either by the SUPPLIER or with the technical assistance of the SUPPLIER.

 

Clause 8. INSPECTION AND TESTS AT SUPPLIER’S PLANT

 

8.1 The PURCHASER shall be entitled during manufacture to witness inspections, examinations and tests of the EQUIPMENT and workmanship at the SUPPLIER’S premises, during normal working hours, as well as to check the progress of manufacture of all main items, parts or components of the EQUIPMENT to be supplied under the Contract. If the mentioned items, parts, components or EQUIPMENT is being manufactured at other premises, the SUPPLIER shall do its best efforts to get the permission for the PURCHASER to witness such inspections, examinations and tests. All travelling charges and other costs directly related to the inspection of the PURCHASER or its inspectors, shall be for the PURCHASER’s account. The inspections, examinations and tests shall be executed in accordance with the SUPPLIER’S inspections and test procedures.

 

Clause 9. PACKING, TRANSPORTATION AND INSURANCE

The EQUIPMENT shall be delivered FOB port of origin as per INCOTERMS last version, including seaworthy packing if necessary. The supply does not include overseas transportation and respective insurance, custom clearance, import taxes or fees, land transportation and respective insurance and/or any taxes or duties to be paid in Peru.

 

Clause 10. TECHNICAL ACCEPTANCE OF THE EQUIPMENT

 

10.1 The SUPPLIER warrants the performance of the EQUIPMENT in accordance with the provisions as stipulated in Clause 7.3 and Annex F.

 

10.2 The warranty obligations of the SUPPLIER with respect to the performance of the EQUIPMENT shall be fulfilled if either the operation books show the achievement of the warranted performance figures as per Annex F or a performance test has been carried out in accordance with the provisions as set forth in Annex F and the EQUIPMENT has thereby been proven to achieve the warranted performance figures as per Annex F.

 

10.3 In case a performance test is required, the PURCHASER shall conduct the performance tests with the technical assistance of the SUPPLIER in accordance with the regulations stipulated in Annex F.

 

10.4 Once it is proven that the EQUIPMENT achieves the warranted performance figures as per Annex F, the PURCHASER shall issue a Certificate of Technical Acceptance for the EQUIPMENT.

 

10.5 If the aforesaid test shows that the EQUIPMENT does not achieve the warranted performance figures as stipulated in Annex “F” due to reasons attributable to the SUPPLIER, the SUPPLIER, upon receipt of notice from the PURCHASER, shall have a period of ten (10) business days, to start taking all the necessary measures at its own option for substituting or making corrections and the above mentioned test shall be repeated as soon as reasonable practicable thereafter.


10.6 Where repairs or adjustments have been made, and if the EQUIPMENT after a repeated performance test achieves the warranted performance figures as per Annex F, the PURCHASER shall issue a Certificate of Technical Acceptance immediately after the test has been finished.

 

10.7 If a repeated performance test shows that the EQUIPMENT does not achieve the warranted performance figures as per Annex F within a reasonable period of time to be agreed between the Parties, due to reasons attributable to the SUPPLIER and the SUPPLIER does not start to make the necessary corrections for attaining the performance levels stipulated in Annex F within the period as per Clause 10.5, the PURCHASER shall be entitled to claim the respective liquidated damages as provided in Annex F immediately.

Upon payment of such liquidated damages the PURCHASER shall issue a release statement to the SUPPLIER (hereinafter referred to as “Release Statement”) from the responsibilities to achieve the failed specific performance warranty, as per Annex F. In the event, the PURCHASER does not unreasonably issue the Release Statement within 15 days from the payment of such liquidated damages; the SUPPLIER shall be able to issue the “Release Statement” on behalf of the PURCHASER.

 

10.8 In case a performance test cannot be carried out within 48 months after coming into force of the Contract according to Clause 21, or the operation books do not show the achievement of the performance figures as per Annex F by that time for reasons not attributable to the SUPPLIER, the PURCHASER shall issue a Certificate of Technical Acceptance, and the SUPPLIER shall be released from any responsibility regarding the performance of the EQUIPMENT. If the SUPPLIER has paid the maximum amount of liquidated damages provided for in Annex F, Clause 10.7 shall be applied.

 

Clause 11. ASSIGNMENT AND SUBCONTRACTING

The SUPPLIER may use parts of the EQUIPMENT supplied by qualified subcontractors having a quality control system and capability satisfactory to the SUPPLIER; however, subcontracting shall not relieve the SUPPLIER from full and entire responsibility for performance of its obligations and its subcontractors in accordance with this Contract.

 

Clause 12. INTELLECTUAL PROPERTY RIGHTS

 

12.1. The SUPPLIER shall indemnify the PURCHASER against all claims of infringement of any patent, registered design, copyright, trade mark or trade name or other intellectual property right provided that all of the following conditions are satisfied:

 

  (i) The claim or proceedings arise out of the design, construction, manufacture or use of the EQUIPMENT supplied by the SUPPLIER.

 

  (ii) The infringement was not caused by any use of the EQUIPMENTS otherwise than for the purpose indicated by or reasonably to be inferred from Annex E.

 

  (iii) The infringement was not caused by the use of any EQUIPMENT in association or combination with any equipment not supplied by the SUPPLIER, unless such association or combination was performed by Thyssenkrupp Polysius AG or its affiliates companies or disclosed to the SUPPLIER prior to the date of signing of the Contract, or was not reasonably to be inferred from the specification.

 

  (iv) The infringement or allegation of infringement was not a necessary consequence of the SUPPLIER following the design or specific written instructions of the PURCHASER.


12.2 If during the execution of this Contract industrial property rights or copyrights might be generated, those belong to the SUPPLIER and the PURCHASER herewith already obliges itself to observe secrecy regarding those rights and to render every assistance necessary for the SUPPLIER to make the arrangements for the registration with the competent organ.

 

12.3 The industrial property of the SUPPLIER such as drawings, patents, copyrights, data, calculations and other elaborations, know-how, etc. put at the disposal of the PURCHASER within the scope of this Contract shall neither be transferred to the PURCHASER nor shall any license for the exploitation of the industrial property as mentioned above be issued.

 

Clause 13. CONFIDENTIALITY

 

13.1 During the term of this Contract and for a period of five (5) years thereafter, the parties shall keep all information disclosed or otherwise made available pursuant to or in the course of this Contract, whether orally or in any other manner, hereinafter refer to “Confidential Information”, strictly confidential and it shall not disclose any Confidential Information to any third parties without having obtained the other party ’s prior express written permission to do so, unless specifically provided for herein below.

 

13.2 The obligation of confidentiality imposed upon the parties pursuant this Clause 13 shall not apply to any information (i) that was already in the possession of the PURCHASER at the time of disclosure, or is rightfully obtained from a source other than from the SUPPLIER or vice versa; (ii) which at any time becomes available to the public or is or has gone into the public domain through no fault of the PURCHASER or vice versa; (iii) which, after disclosure by the SUPPLIER to the PURCHASER, is at any time lawfully obtained by the PURCHASER from third parties who are under no confidential obligation to the SUPPLIER or vice versa; or (iv) which is required by law to be disclosed by the receiving Party or (v) pursuant to an order of a court or administrative body of competent jurisdiction or government agency, provided that the PURCHASER shall notify the SUPPLIER in the event the PURCHASER elects to legally contest, request confidential treatment, or otherwise avoid such disclosure or vice versa.

 

13.3 Notwithstanding the aforementioned, the SUPPLIER shall be allowed to publish the basic data of the PROJECT in its webpage, brochures and new releases, after written authorization from the PURCHASER. The PURCHASER shall not unreasonably withhold that authorization.

 

Clause 14. RESPONSIBILITY AND LIQUIDATED DAMAGES

 

14.1. The SUPPLIER shall be responsible exclusively in accordance with the terms in this Clause 14.

 

14.2. The parties shall in no event be liable for any indirect, consequential or accidental losses and damages, such as, but not limited to loss of use of the equipment and services, loss of profit or loss of production, no matter if those are based on this contract, tort, violation of accessory obligations or any other reclamations resulting from loss of production and loss of profit.

 

14.3. In case the SUPPLIER does not comply with its delivery dates stipulated in the Contract, they shall be subject to liquidated damages corresponding to 0,5 % of the FOB value of the section of the EQUIPMENT in delay per each full week in delay, counted from the beginning of the non-fulfillment until effective fulfillment of the obligation, up to a maximum amount corresponding to 5% of the section of the EQUIPMENT in delay.


14.4. The maximum amount of liquidated damages to be paid under this Contract for the reason of delay shall be limited to 5 % of the FOB price of the plant section in delay. The PURCHASER shall not be entitled to any liquidated damages for delay in the event the time schedule for the PROJECT is not affected by the SUPPLIER’S delay.

 

14.5. The Parties agree that the reference value for the calculation of all possible indemnifications stipulated in this Contract shall be the prices stipulated in Annex A and that the total maximum responsibility of the SUPPLIER towards the PURCHASER for the execution of this Contract, including the obligation to pay liquidated damages for delay as set in Clause 14.3 or for nonperformance as set in Clause 10.7 shall be expressly limited to 10% of the contract price.

 

14.6 The whole liability and responsibility of the parties are agreed upon completely and exclusively in this Contract. Whenever a right and/or remedy is stipulated in the Contract such right and/or remedy shall be the sole right and/or remedy regarding the subject and other rights and/or remedies shall be excluded. Notwithstanding the aforementioned, the SUPPLIER hereby agrees to indemnify, defend and hold harmless the PURCHASER, and any of its subsidiaries, parents or affiliates, and their respective directors, officers, agents, employees and designees, from and against any and all losses, claims, liabilities, injuries, damages and expenses, including, without limitation, attorneys’ fees and court costs, arising out of, or occurring in connection with, (i) the performance or lack of performance by the SUPPLIER of its duties and obligations under or pursuant to this Contract, and/or (ii) any error, omission or act (negligent or otherwise) by the SUPPLIER, or its employees, agents, affiliates or other representatives.

The whole liability and responsibility of the SUPPLIER is agreed upon completely and exclusively in this Contract, and shall be limited to 10% of the Contract Price whether such liability arises from anyone or more claims or actions for breach of contract, tort (including negligence), delayed completion, warranty, indemnity, strict liability or otherwise. Whenever a right and/or remedy is stipulated in the Contract such right and/or remedy shall be the sole right and/or remedy regarding the subject and other rights and/or remedies shall be excluded.

 

Clause 15. VARIATIONS AND SEVERABILITY

No amendment, addition, variation, or modification of any term or provision of this Contract shall be effective unless both Parties confirm it by a written addendum, duly executed.

If, for any reason whatsoever, any provision of this Contract is held to be invalid, illegal or ineffective, such provision shall be replaced by the Parties by an admissible one, aiming at the same economic and legal results and the validity, legality and effectiveness of the remaining provisions of this Contract shall not thereby be affected or compromised in any manner.

 

Clause 16. FORCE MAJEURE

 

16.1 Neither Party shall be liable for delay or failure in performing all or any part of this Contract to the extent that its performance has been obstructed due to a Force Majeure Event. Force Majeure as used in this Contract shall mean any event and circumstances beyond the control of the Parties. Such events shall include but shall not be limited to fires, explosions, flood, facts of the elements, acts of public enemies, sabotage, wars, riots, civil or political disturbance, interference by military authorities, prohibitions of exports or imports, epidemics, pandemics.

 

16.2

If an event of Force Majeure occurs the time stipulated for the fulfilment of the obligations of the affected Party shall be extended or suspended for a period equal to the duration of such event or circumstance, without any liability, provided that the Party so affected informs the other promptly in


  writing or by e-mail or facsimile together with supporting documents confirming the event which causes such Force Majeure. Such notice shall set forth in reasonable details the nature of the Force Majeure and the best estimate by the Party so claiming of the duration thereof. The Party so affected shall not be liable to the other for damages caused by the occurrence of a Force Majeure event. In the event of Force Majeure, the Parties shall immediately consult with each other to find an equitable solution and shall use their best efforts to minimize the consequences of such Force Majeure event.

 

16.3 As soon as reasonably possible after the end of the Force Majeure event the affected Party shall notify the other Party in writing that the Force Majeure event has ceased and resume the performance of its obligations under this Contract.

 

16.4 In the event that a case of Force Majeure persists for duration of sixty (60) or more days, the Parties shall convene and mutually agree how to proceed.

 

Clause 17. TERMINATION

 

17.1 The Parties may terminate this Contract by a written notice if the other Party becomes bankrupt or insolvent, goes into liquidation, has a receiving or administration order made against it, or carries on business under a receiver

 

17.2 THE SUPPLIER may terminate this Agreement in the event that the PURCHASER unjustifiably delays payments due for more than sixty (60) days and in the event of Clause 21.2;

 

17.3 THE PURCHASER may terminate this Agreement in the event that the SUPPLIER unjustifiably delays the supply of the EQUIPMENT for more than sixty (60) days;

 

17.4 In the event of termination due to any reasons not attributable to the SUPPLIER, the SUPPLIER shall be compensated for all such actual, reasonable and duly evidenced costs which have been occurred until the date of termination, not to exceed the Contract Price, which means for:

 

  (i) All equipment ordered and already started manufacturing;

 

  (ii) All cancellation fees incurred by the SUPPLIER, and;

 

  (iii) All engineering work already executed.

After the SUPPLIER has received the compensation, the L/C mentioned at Clause 4.2, shall hereafter be voided automatically.

 

17.5 All other rights and/or remedies of the PURCHASER with regard to the termination reason shall be expressly excluded.

 

Clause 18. INSURANCE

 

18.1. All relevant Contract insurances shall be provided by the PURCHASER at his cost and the insurances so provided and maintained by the PURCHASER shall include a waiver of subrogation, which shall state that the insurer waives all right of subrogation against the SUPPLIER, its representatives, employees, agents, affiliates and Sub-Suppliers. The PURCHASER shall indemnify and hold the SUPPLIER harmless for all and any claims which may arise against SUPPLIER in this regard. All relevant Contract insurances means: EQUIPMENT Transport Insurance, All Risk Insurance with the SUPPLIER co-insured.

 

18.2 It is a condition of the Contract that the PURCHASER shall authorize the insurers to pay any insurance claim arising out of the Contract direct to the SUPPLIER without any deduction except in respect of the stipulated insurances.


Clause 19. NOTICES

 

19.1 Any notice or communication to be made hereunder by the SUPPLIER to the PURCHASER shall be addressed as follows:

 

Mr. Juan Teevin
Piura Cement Plant Project Manager
Cementos Pacasmayo S.A.A.
Calle La Colonia N° 150, Urb. El Vivero
Lima 33, Peru
Email: jteevin@cpsaa.com.pe
Tel: (511) 317-6000, Ext.: 2078

 

19.2 Any notice or communication to be made hereunder by the PURCHASER to the SUPPLIER shall be addressed as follows:

Ariel Edgardo Gamburgo

Polysius do Brasil

Dept. 100 – Cordinación de Proyectos / Contract Management

Av. Brig. Faria Lima, 1572 – 14º andar

CEP 01451-917 São Paulo – SP - Brasil

Phone: +55 11 3811 4459 /

+55 11 98254 2385

E-mail address: ariel.gamburgo@thyssenkrupp.com

With copy to:

Peter Berg

Project manager

Loesche GmbH

Hansaallee 243

40549 Düsseldorf

Germany

Email: peter.berg@loesche.de

Tel: +49- 211-5353-351

 

19.3 Notices can also be made to any other address or person that the Parties may inform to each other during the term of this Contract.

 

19.4 Any correspondence between the Parties shall be in the English language.

 

Clause 20. GOVERNING LAW AND DISPUTE RESOLUTION

 

20.1 This Contract shall be governed by and construed in accordance with the laws of Peru and Rules of the United Nations Convention on Contracts for the International Sale of Goods shall apply supplementary.


20.2 Negotiation

If a dispute arises between the Parties relating to or arising out of this Contract, then within thirty (30) days of a Party in writing notifying the other Party of a dispute, senior representatives from each Party must meet and use reasonable endeavours acting in good faith to resolve the dispute.

 

20.3 Mediation

If a dispute arising under this Contract is not resolved within 15 days of notification of the dispute under Clause 20.2, the Parties will, if mutually agreed, submit the matter to mediation before two mediators, each one to be appointed by the CEO’s of both parties. The mediation process will cease if the dispute is not settled within thirty (30) days of the last mediator being appointed, or such longer period as the Parties may agree.

 

20.4 Arbitration

If a dispute arising under this Contract is not resolved under clause 20.3 (or if no agreement is reached to refer the dispute to mediation within thirty (30) days of notification of the dispute under clause 20.3, either Party may, by written notice to the other, refer the dispute to arbitration in accordance with the Rules for Arbitration of ICC (International Chamber of Commerce, Paris) by three (3) arbitrators appointed in accordance with the said Rules. The arbitration shall be conducted in English and held in the city of Paris, France, unless all parties to the arbitration agree otherwise. The determination of the arbitrators shall be final and binding upon the Parties and the enforcement of the award may be entered in any court having jurisdiction for such enforcement.

 

Clause 21. COMING INTO FORCE OF THE CONTRACT

 

21.1. This Contract shall come into force upon the signature by all Parties, the receipt of the pre-advance payment as per Clause 4.2 and emission of the Letter of Credit according to Clause 4.2.

 

21.2 In case the Letter of Credit is not issued within 30 days after signing the Contract and/or the advance payments according to Clause 4.2 have not been made by the PURCHASER within 30 days after signing the Contract, the Parties shall meet to negotiate any further procedure.

IN WITNESS WHEREOF , the Parties have caused this Contract to be duly executed by their legal representatives in two (2) counterparts of identical content, in the presence of the undersigned witnesses.

PLACE AND DATE: September 28 th , 2012

 

Cementos Pacasmayo S.A.A.      Cementos Pacasmayo S.A.A.

/s/ Humberto Nadal del Carpio

    

/s/ Carlos Julio Pomarino

Humberto Nadal      Carlos Julio Pomarino


Loesche GmbH     Loesche GmbH

/s/ Jürgen Triep

   

/s/ Thomas Komarek

Jürgen Triep     Thomas Komarek


Annex I:

AFFIDAVIT REGARDING THE ENGINEERING

September 28 th , 2012

Gentlemen:

Cementos Pacasmayo S.A.A .

I write this letter in my condition of representative of Loesche GmbH, in order to issue the present Affidavit, by means of which we certificate that by virtue of the Engineering Services referred in the “Equipment Supply Contract N° 2020-0126/2012”, our company will render technical assistant services to Cementos Pacasmayo S.A.A. to develop the Basic and Detailed Engineering for the Cementos Piura 3000 tpd of Clinker Greenfield Plant.

The referred services will be rendered during the following term: since the day hereof to the term indicated at Clause 3.3 of the Contract above mentioned. This term could be extended if both parties agree so. For these services rendering, we will send the corresponding invoices, we will pay the corresponding local taxes, we will register them in our accounting books and we will include them in the Statement to be filled before the corresponding public entities.

Signed on September 28 th , 2012, as you requested and according to the section f) of the article 56 of the Peruvian Income Tax Law, according to the Law No. 28442 amendment, in force since January 1, 2005; and other complementary and amended norms.

 

Sincerely,

 

Loesche GmbH


Spanish Translation

DECLARACIÓN JURADA

28 de Septiembre de 2012

Sres.

Cementos Pacasmayo S.A.A .

De mi mayor consideración:

Me dirijo a ustedes en mi calidad de representante de Loesche GmbH, a efectos de emitir la presente declaración jurada, la cual tiene por finalidad certificar que en virtud del “Contrato N° 2020-0126/2012”, nuestra empresa prestará servicios de Asistencia Técnica a Cementos Pacasmayo S.A.A. para desarrollar la Ingeniería Básica y de Detalle para su nueva Planta de Cemento de 3000 tpd de Clinker en Piura, Perú.

Los referidos servicios serán prestados desde la fecha de emisión del presente documento hasta el término del plazo indicado en la Cláusula 3.3 del contrato antes mencionado. Dicho plazo podrá ser ampliado por acuerdo de las partes. Por la prestación de dichos servicios, enviaremos las respectivas facturas, nos haremos cargo de los impuestos locales en Alemania, correspondientes a las mismas, las asentaremos en nuestros libros contables y las incluiremos en las declaraciones que deban presentarse ante los organismos públicos correspondientes en Alemania.

La presente declaración se realiza a los 28 días del mes de Septiembre de 2012, a vuestra solicitud y en cumplimiento de lo establecido en el inciso f) del Artículo 56° de la Ley del Impuesto a la Renta peruana, según modificación introducida por la Ley N° 28442, vigente a partir del 1 de enero de 2005.

 

Atentamente,

 

Loesche GmbH

EXHIBIT 4.2

EQUIPMENT SUPPLY CONTRACT

BETWEEN

Cementos Pacasmayo S.A.A.

Calle La Colonia 150

Urbanización El Vivero, Monterrico

Lima 33

Peru

AND

THYSSENKRUPP POLYSIUS AG

Graf – Galen – Str. 17

59269 Beckum

Germany

AND

POLYSIUS DO BRASIL LTDA.

Av. Brig. Faria Lima, 1572 – 14º andar

01451-917 São Paulo – SP

Brasil

Under the leadership of Polysius do Brasil Ltda., hereinafter called Polbras


TABLE OF CONTENTS

 

CLAUSE 1.   OBJECT    03
CLAUSE 2.   CONTRACTUAL DOCUMENTS    05
CLAUSE 3.   DURATION TIME, DELIVERY SCHEDULE AND TERMS OF DELIVERY    05
CLAUSE 4.   PRICE AND PAYMENT TERMS    05
CLAUSE 5.   THE PURCHASER’S OBLIGATIONS    09
CLAUSE 6   THE SUPPLIERS’S OBLIGATIONS    09
CLAUSE 7   THE SUPPLIERS’S WARRANTIES    10
CLAUSE 8   INSPECTION AND TESTS AT SUPPLIERS’S PLANT    12
CLAUSE 9.   PACKING, TRANSPORTATION AND INSURANCE    12
CLAUSE 10.   TECHNICAL ACCEPTANCE OF THE EQUIPMENT    12
CLAUSE 11.   ASSIGNMENT AND SUBCONTRACTING    13
CLAUSE 12.   INTELLECTUAL PROPERTY RIGHTS    13
CLAUSE 13.   CONFIDENTIALITY    14
CLAUSE 14.   RESPONSIBILITY AND LIQUIDATED DAMAGES    14
CLAUSE 15.   VARIATIONS AND SEVERABILITY    15
CLAUSE 16.   FORCE MAJEURE    16
CLAUSE 17.   TERMINATION    16
CLAUSE 18.   INSURANCE    17
CLAUSE 19.   NOTICES    17
CLAUSE 20.   GOVERNING LAW AND DISPUTE RESOLUTION 158   
CLAUSE 21.   COMING INTO FORCE OF THE CONTRACT    16


This Equipment Supply Contract (hereinafter called “Contract”) is made and entered on September 28 th , 2012 by and between Cementos Pacasmayo S.A.A. , a company duly organized under the laws of Peru, having its principal place of business at Calle La Colonia N° 150, Urb. El Vivero, Santiago de Surco, Lima, Peru (hereinafter called “PURCHASER”), and THYSSENKRUPP POLYSIUS AG having its head offices at Graf – Galen-Strasse 17, 59269 Beckum, Germany, (hereinafter called “POLYSIUS GERMANY”) and POLYSIUS DO BRASIL LTDA. having its head offices at Av. Brig. Faria Lima, 1572 – 14º andar, 01451-917 São Paulo – SP, Brasil (hereinafter called “POLYSIUS BRASIL”) both collectively referred to as “the “SUPPLIERS ”.

The PURCHASER and THE SUPPLIERS are hereinafter individually referred to as “Party” and collectively referred to as “Parties”.

WHEREAS:

 

I. The PURCHASER owns a plant site located in Piura, Peru.

 

II. The PURCHASER is interested in acquiring certain equipment from THE SUPPLIERS, said equipment to be installed and used at the mentioned plant site for the new cement plant at Piura, Peru with a capacity of 3000 tpd of clinker and 230 tph of cement grinding capacity (hereinafter referred to as “PROJECT”);

 

III. The Parties confirm their desire to negotiate a comprehensive Turnkey Engineering, Procurement, and Construction Agreement for the PROJECT (the “EPC Agreement”), which, when executed, shall supersede this Contract in all respects;

 

IV. The Parties, having agreed upon such supply and their desire to negotiate the EPC Agreement, wish to formalize their purpose in (i) this Contract, (ii) that certain Limited Notice to Proceed and Letter of Intent between the PURCHASER and the SUPPLIERS dated on or about the date hereof, and (iii) that certain Comfort Letter Agreement between SUPPLIERS, PURCHASER, and Loesche GmbH dated on or about the date hereof (the “Comfort Letter”);

NOW, THEREFORE , the Parties have agreed to enter into this Contract, which shall be governed by the following terms and conditions:

 

Clause 1. OBJECT

 

1.1 The object of this Contract is the supply by THYSSENKRUPP POLYSIUS AG and POLYSIUS DO BRASIL LTDA. of the Equipment mentioned at Annex “B” and further described in the technical specification in Annex E attached hereto (hereinafter referred to as “EQUIPMENT”) and the Basic and Detailed Engineering for the EQUIPMENT, included in Annex E (hereinafter referred to as “ENGINEERING”), for a new cement plant located in Piura, Peru.


1.3 Upon execution of the EPC Agreement, the EPC Agreement shall supersede this Contract and this Contract shall be deemed automatically terminated and of no further force or effect as of such date. Notwithstanding anything to the contrary contained herein, upon any termination of this Contract without execution of the EPC Agreement, the PURCHASER shall have all ownership rights to all EQUIPMENT and ENGINEERING for which the SUPPLIERS has been paid and all intellectual property rights associated therewith, and the SUPPLIERS shall have no claims in connection therewith. In the event the EPC Agreement is executed, transfer of title to EQUIPMENT and ENGINEERING and related documentation and all intellectual property rights associated therewith shall be governed by the EPC Agreement.

 

1.4 Notwithstanding anything to the contrary contained herein (including, without limitation, Clause 17 hereof), if the SUPPLIERS unreasonably denies entering into the EPC Contract according to the terms set forth, the SUPPLIERS agree to supply to the PURCHASER all the information and documentation sufficient to support the PURCHASER to find, in short term, one or more suppliers to execute the remaining matters of the scope of the PROJECT, without any additional cost.

 

Clause 2. CONTRACTUAL DOCUMENTS

 

2.1 The following Annexes, enclosed to this Contract, shall constitute an integral part hereof:

 

  2.1.1 Annex A: Pricelist

 

  2.1.2 Annex B: Scope of supply

 

  2.1.3 Annex C: Supervision of erection and commissioning

 

  2.1.4 Annex D: Time Schedule

 

  2.1.5 Annex E: Technical Specification

 

  2.1.6 Annex F: Technical Guarantees

 

  2.1.7 Annex G: Material Investigation

 

  2.1.8 Annex H: Advanced Payment and Performance Bond

 

  2.1.9 Annex I: Affidavit regarding the ENGINEERING

 

2.2 In the event of dissent or controversy between the terms of this Contract and those of the documents listed above, the terms of this Contract shall prevail.

 

2.3 In the event of controversy between the terms and conditions of the Annexes hereto, the terms of the Annexes will prevail in the numeric order of precedence set forth above, except for the “Technical Specification” (Annex E) and “Technical Guarantees” (Annex F) which will always prevail.

 

Clause 3. DURATION TIME, DELIVERY SCHEDULE AND TERMS OF DELIVERY

 

3.1 Delivery Schedule of the EQUIPMENT:

 

   

For Mechanical Equipment: 10 - 15 months from coming into force of the contract according to Clause 21, as detailed in Annex “D”.

 

   

For Electrical Equipment: 10 - 18 months from coming into force of the contract according to Clause 21, as detailed in Annex “D”.

 

3.2 Terms of Delivery of the EQUIPMENT

FOB port of origin according to INCOTERMS 2010.

 

3.3 Delivery Schedule of the ENGINEERING:

 

   

Basic and Detailed: 1 - 17 months from coming into force of the contract according to Clause 21, as detailed in Annex “E”.


Clause 4. PRICE AND PAYMENT TERMS

 

4.1 For the supply of the EQUIPMENT, the PURCHASER shall pay to THYSSENKRUPP POLYSIUS AG the price of € 11,054,208.00 (Eleven Million, Fifty Four Thousand, Two Hundred and Eight Euros) and to POLYSIUS DO BRASIL LTDA. the price of US$ 17,970,208.00 (Seventeen Million, Nine Hundred Seventy, Two Hundred and Eight American Dollars) (hereinafter referred to as “Contract Price”).

 

   

For the EQUIPMENT: € 11,054,208.00 (Eleven Million, Fifty Four Thousand, Two Hundred and Eight Euros) to THYSSENKRUPP POLYSIUS AG and US$ 16,173,208.00 (Sixteen Million One Hundred and Seventy Three Two Hundred and Eight American Dollars) to POLYSIUS DO BRASIL LTDA. (herein after referred to as the “EQUIPMENT Price”).

 

   

For the ENGINEERING US$ 1,797,000.00 (One Million Seven Hundred and Ninety Seven American Dollars) to POLYSIUS DO BRASIL LTDA. (herein after referred to as the “ENGINEERING Price”).

The Parties agree that the prices for the supply of the EQUIPMENT and the ENGINEERING are fixed, and shall remain valid and invariable until the fulfilment of all SUPPLIERS’s obligations, according to the terms of this Contract.

 

  4.1.1 FOB prices for each section of the Plant (EQUIPMENT) can be found at Annex “A”.

 

  4.1.2 The scope of the ENGINEERING can be found at Annex B and E.

 

4.2 Payment Conditions

For values in Euro to be paid to THYSSENKRUPP POLYSIUS AG :

30% of the EQUIPMENT Price, payable within 15 days after signing the Contract, against submittal of invoice and the Advance Payment Bond as per Annex H. This Bond shall be valid and effective until the completion of the supply of the EQUIPMENT and shall be automatically and proportionally reduced without the prior approval of the PURCHASER of the value of each commercial invoice issued to the PURCHASER under this Contract.

70% of the Contract Price, payable out of a Letter of Credit (L/C), according to the following:

 

   

For the EQUIPMENT Price, against presentation of THYSSENKRUPP POLYSIUS AG ’s documents of dispatch, or warehouse receipt, pro rata supplies, and the Performance Bond as per Annex H, for the last major shipment. This Bond shall be valid and effective until the issuance of the Certificate of Technical Acceptance by the PURCHASER.

Documents of dispatch means: Bill of Lading or Airway Bill or Warehouse Receipt, Packing List and Invoice. Documents of dispatch shall be delivered by THYSSENKRUPP POLYSIUS AG to the PURCHASER via-email, immediately after the departure of the carrying vessel from the Port of Shipment.


To cover the payment of 70% of the Price Contract, within 30 days after signing the Contract, the PURCHASER shall open one irrevocable Letter of Credit (L/C), in the amount of € 7,737.945.60 (Seven Million, Seven Hundred Thirty Seven Thousand, Nine Hundred Forty Five Euros and Sixty Cents) in favor of THYSSENKRUPP POLYSIUS AG . The L/C shall be advised and confirmed by a First Class International Bank in Germany, acceptable to THYSSENKRUPP POLYSIUS AG .

For values in US Dollars to be paid to POLYSIUS DO BRASIL LTDA. :

30% of the ENGINEERING Price, payable within 15 days after signing the Contract, against submittal of invoice and the Advance Payment Bond as per Annex H. This Bond shall be valid and effective until the completion of the supply of the ENGINEERING and shall be automatically and proportionally reduced without the prior approval of the PURCHASER of the value of each commercial invoice issued to the PURCHASER under this Contract.

30% of the EQUIPMENT Price, payable within 15 days after signing the Contract, against submittal of invoice and the Advance Payment Bond as per Annex H. This Bond shall be valid and effective until the completion of the supply of the EQUIPMENT and shall be automatically and proportionally reduced without the prior approval of the PURCHASER of the value of each commercial invoice issued to the PURCHASER under this Contract.

70% of the Contract Price, payable out of a Letter of Credit (L/C), according to the following:

 

   

For the EQUIPMENT Price, against presentation of POLYSIUS DO BRASIL LTDA. ’s documents of dispatch, or warehouse receipt, pro rata supplies, and the Performance Bond as per Annex H, for the last major shipment. This Bond shall be valid and effective until the issuance of the Certificate of Technical Acceptance by the PURCHASER.

Documents of dispatch means: Bill of Lading or Airway Bill or Warehouse Receipt, Packing List and Invoice. Documents of dispatch shall be delivered by POLYSIUS DO BRASIL LTDA. to the PURCHASER via-email, immediately after the departure of the carrying vessel from the Port of Shipment.

 

   

For the ENGINEERING Price, against the PURCHASER’s confirmation receipt of the ENGINEERING documentation to POLYSIUS DO BRASIL LTDA . If POLYSIUS DO BRASIL LTDA. does not receive the PURCHASER’s confirmation receipt within 15 days from the delivery of ENGINEERING documentation, POLYSIUS DO BRASIL LTDA. shall be able to present the courier delivery note under the L/C, instead of PURCHASER’s confirmation receipt. ENGINEERING documentation means: General Layout and General Arrangement Drawings. Consequently, the 70% of the ENGINEERING Price, shall be paid by the PURCHASER in two (02) tranches:

 

   

US$ 628,950.00 (Six Hundred and Twenty Eight Thousand and Nine Hundred and Fifty American Dollars) for the General Layout.

 

   

US$ $ 628,950.00 (Six Hundred and Twenty Eight Thousand and Nine Hundred and Fifty American Dollars) American Dollars) for the General Arrangement Drawings.

To cover the payment of 70% of the Price Contract, within 30 days after signing the Contract, the PURCHASER shall open one irrevocable Letter of Credit (L/C), in the amount of US$ 12,579,145.00 (Twelve Million, Five Hundred Seventy Nine Thousand, One Hundred Forty Five American Dollars) in favor of POLYSIUS DO BRASIL LTDA . . The L/C shall be advised and confirmed by a First Class International Bank in Germany, acceptable to POLYSIUS DO BRASIL LTDA . .


4.3 Each payment not covered by the Letter of Credit shall be effected to the following bank account:

For Polysius do Brasil Ltda.;

BBDEBRSPSPO – Banco Bradesco S/A, São Paulo

Nº 2374-4 65.375-6

In favor of Polysius do Brasil Ltda., Av. Brigadeiro Faria Lima 1572 14º -

SP/Brasil, CNPJ Nº 43.811.819/0001-41

For ThyssenKrupp Polysius AG:

Commerzbank Dortmund

BIC (Swift Code): COBA DE FF 440

IBAN: DE37 4404 0037 0364 5157 00

 

4.4 Taxes and Duties

All taxes until FOB port of origin are included in the supply. Local taxes or duties, such as but not limited, to customs clearance, import taxes, any Peruvian withholding tax and IVA are expressly not included and shall be borne by the PURCHASER.

 

4.5 Invoices

4.5.1 SUPPLIERS shall deliver to the PURCHASER two (02) originals and two (02) copies of each respective invoice for each payment milestone as provided for in Clause 4.2 above for the amounts indicated above.

4.5.2 The invoices issued in connection with the payment milestones set forth in Clause 4.2 above shall state the following:

 

   

For the EQUIPMENT:

 

   

SUPPLIERS’s Name and Address;

 

   

EQUIPMENT’s description;

 

   

Unit price and total amount;

 

   

Currency.

 

   

For the ENGINEERING:

 

   

SUPPLIERS’s Name and Address;

 

   

ENGINEERING description;

 

   

Unit price;

 

   

Total amount;

 

   

Peruvian withholding Tax (15% of total amount);

 

   

Net Price;

 

   

Currency.

 

4.6 All copies of the invoices shall be issued to the PURCHASER and sent to the address indicated in Clause 19.1 within five (5) days from the issuance date of the documents.


Clause 5. THE PURCHASER’S OBLIGATIONS

The PURCHASER shall be obliged to:

 

5.1 Provide THE SUPPLIERS, in due time, with any reasonable information necessary for the supply of the EQUIPMENT. The PURCHASER shall, within ten (10) days from its respective receipt, approve the documents provided by THE SUPPLIERS related to the Contract and, in case such documents are deemed not to be in accordance with THE SUPPLIERS’S obligations, the PURCHASER shall return the documents to THE SUPPLIERS, clearly stating the reasons for such disagreement, and require its correction within fifteen (15) days from the date of receipt of the documents at the SUPPLIERS’S office.

In case the PURCHASER does not disagree with the documents by returning them or does not expressly approve them within the period stated above, all documents sent by THE SUPPLIERS shall be deemed approved.

The aforementioned rules shall not apply for amendments, additions, variations or modifications of any term provision of this Contract. In such cases, Clause 15 shall apply.

 

5.2 Pay the price as established in Clause 4.

 

5.3 Provide all requisites and fulfil all preconditions expressly set in Annex E and F, which are necessary to enable THE SUPPLIERS to comply with the performance warranties as stipulated in the Contract.

 

5.4 Coordinate the execution of the supply to be conducted by the SUPPLIERS with other supplies and works related to the PROJECT, except the supplies and works performed by Loesche GmbH and affiliates companies.

 

5.5 Notify THE SUPPLIERS in writing and within 15 days after signing the Contract, of any internal rules and/or regulations as well as any particular proceedings and or structures which the PURCHASER wishes to apply for the execution of the Contract. In the event the SUPPLIERS is not being notified in accordance with this Clause 5.5, the SUPPLIERS shall have no obligation with regard to the adherence to any such rules, regulations, proceedings and/or structures as mentioned above.

 

5.6 Obtain and maintain, at its own cost, any and all licenses and/or authorizations which may be necessary for the execution of the PROJECT.

 

5.7 Execute the erection, commissioning and performance test work, according to Annex C, which will become an integral part of a future “Erection Supervision and Commissioning Services Agreement” to be entered by and between the PURCHASER and the SUPPLIERS.

 

5.8 PURCHASER shall be responsible to name the vessel for FOB delivery according to 3.2 within 21 days of the SUPPLIERS’S notice of readiness for dispatch. In the event no vessel has been named within the above period, the SUPPLIERS shall be entitled to put the respective part of the EQUIPMENT in storage and receive the respective payment according to 4.2 against presentation of warehouse receipt.

 

Clause 6. THE SUPPLIERS’S OBLIGATIONS

 

6.1. Supply the EQUIPMENT in accordance with the specifications described in Annex A, B, D, E and F.

 

6.2 Provide the necessary technical documents according to the requirements of the Contract, including manuals, projects, designs, plans, related to the supply, operation and maintenance of the EQUIPMENT, all of which shall be in the English and/or Spanish language.


6.3 Issue the Advance Payment Bond and the Performance Bond as per Clause 4.2 and Annex “H”.

 

6.4 Issue of the Affidavit regarding the ENGINEERING, mentioned in Annex I.

 

Clause 7. WARRANTIES

 

7.1 Warranty regarding the material

 

  7.1.1 The SUPPLIERS hereby warrants that the EQUIPMENT shall be new and free from any defects in workmanship and materials, applying to the standards set forth in this Contract and in the Annexes hereto.

 

  7.1.2 The warranty obligations shall be effective against defects in workmanship and materials or wrong instructions by the SUPPLIERS’s Supervisory Personnel for: 12 months after issuance of the Certificate of Technical Acceptance by the PURCHASER from the date of commissioning, however not longer than 48 months after coming into force of the Contract according to Clause 21, whichever occurs first (“WARRANTY PERIOD”). In the event that the delivery will be delayed due to reasons attributable to the SUPPLIERS, the warranty latest date shall be prolonged according to the duration of the delay. Notwithstanding the above, the PURCHASER’s rights to claim the Liquidated Damages set forth in Clause 14 shall not be affected hereby.

Within the WARRANTY PERIOD, the SUPPLIERS undertakes, for his scope of supply and if requested by the PURCHASER in writing, to replace, modify, and/or repair pieces or components of the EQUIPMENT, which are found defective due to reasons of fabrication or material, at its own option, if possible at the place of operation, provided that those defects of the pieces of the equipment or components are not the consequence of natural wear, misuse by the PURCHASER or third persons, or pieces and components which have been operated and/or stored in discordance with the operation and maintenance manuals of the SUPPLIERS or the defects have occurred due to any act of negligence by the PURCHASER or by third persons, or due to chemical or electrolytic influences. Wear and tear parts are also not included in the warranties. The request referred to above shall contain the nature of the nonconformity with the technical specification as agreed in Annex E.

The parts, pieces or components of the EQUIPMENT which have been removed and replaced within the WARRANTY PERIOD as stipulated above shall become the property of the SUPPLIERS and the warranty period for replaced and repaired parts shall be one (1) year from the date of repair or replacement, however not longer than 48 months after coming into force of the Contract according to Clause 21, whichever occurs first.

 

7.2 Liability for Defective Engineering

During the WARRANTY PERIOD as per item 7.1.2 the SUPPLIERS’S sole obligation regarding faulty engineering shall be to correct by replacement any error or omission detected in the drawings, manuals and catalogues which have been supplied as per Annex E within 60 days as from the date the SUPPLIERS have received the respective documents from the PURCHASER as per Clause 5.1. However, it shall be expressly agreed that the SUPPLIERS shall have no liability for errors or omissions detected in the documents which have been supplied as per Annex “A” unless such error or omission is attributable to the SUPPLIERS, and not based on incorrect information, drawings or documents provided by the PURCHASER.


7.3 Warranties for the Performance of the EQUIPMENT

Performance warranties and its respective liquidated damages in case of non-fulfilment are stipulated on Annex F of this Contract.

The Parties agree that if the specified service life of the grinding parts is not achieved, then the SUPPLIERS shall credit the difference between the agreed and the achieved service life in accordance with the comparative cost proportion for a new set of grinding parts FOB European port in accordance with INCOTERMS 2010. However, this only applies if the PURCHASER attests the actual service life by an operating hours counter or similar recordings.

 

7.4 It is expressly agreed that the PURCHASER shall not be entitled to claim any further rights and/or remedies regarding the non-fulfilment of the warranties of the EQUIPMENT, except as provided for in this Clause 7, Clause 10 and Annex F of this Contract.

 

7.5 The warranties stipulated in this Clause 7 shall be exclusive and conclusive and no further warranty obligations, whether express or implied shall apply nor shall any of the above given warranty be construed as any special warranty for merchantability or satisfactory quality or fitness for a particular purpose. Furthermore, the warranties stipulated above shall apply only if the EQUIPMENT has been erected and commissioned either by the SUPPLIERS or with the technical assistance of the SUPPLIERS.

 

Clause 8. INSPECTION AND TESTS AT SUPPLIERS’S PLANT

 

8.1 The PURCHASER shall be entitled during manufacture to witness inspections, examinations and tests of the EQUIPMENT and workmanship at the SUPPLIERS’S premises, during normal working hours, as well as to check the progress of manufacture of all main items, parts or components of the EQUIPMENT to be supplied under the Contract. If the mentioned items, parts, components or EQUIPMENT is being manufactured at other premises, the SUPPLIERS shall do its best efforts to get the permission for the PURCHASER to witness such inspections, examinations and tests. All travelling charges and other costs directly related to the inspection of the PURCHASER or its inspectors, shall be for the PURCHASER’s account. The inspections, examinations and tests shall be executed in accordance with the SUPPLIERS’S inspections and test procedures.

 

Clause 9. PACKING, TRANSPORTATION AND INSURANCE

The EQUIPMENT shall be delivered FOB port of origin as per INCOTERMS last version, including seaworthy packing if necessary. The supply does not include overseas transportation and respective insurance, custom clearance, import taxes or fees, land transportation and respective insurance and/or any taxes or duties to be paid in Peru.

 

Clause 10. TECHNICAL ACCEPTANCE OF THE EQUIPMENT

 

10.1 The SUPPLIERS warrants the performance of the EQUIPMENT in accordance with the provisions as stipulated in Clause 7.3 and Annex F.

 

10.2 The warranty obligations of the SUPPLIERS with respect to the performance of the EQUIPMENT shall be fulfilled if either the operation books show the achievement of the warranted performance figures as per Annex F or a performance test has been carried out in accordance with the provisions as set forth in Annex F and the EQUIPMENT has thereby been proven to achieve the warranted performance figures as per Annex F.


10.3 In case a performance test is required, the PURCHASER shall conduct the performance tests with the technical assistance of the SUPPLIERS in accordance with the regulations stipulated in Annex F.

 

10.4 Once it is proven that the EQUIPMENT achieves the warranted performance figures as per Annex F, the PURCHASER shall issue a Certificate of Technical Acceptance for the EQUIPMENT.

 

10.5 If the aforesaid test shows that the EQUIPMENT does not achieve the warranted performance figures as stipulated in Annex “F” due to reasons attributable to the SUPPLIERS, the SUPPLIERS, upon receipt of notice from the PURCHASER, shall have a period of ten (10) business days, to start taking all the necessary measures at its own option for substituting or making corrections and the above mentioned test shall be repeated as soon as reasonable practicable thereafter.

 

10.6 Where repairs or adjustments have been made, and if the EQUIPMENT after a repeated performance test achieves the warranted performance figures as per Annex F, the PURCHASER shall issue a Certificate of Technical Acceptance immediately after the test has been finished.

 

10.7 If a repeated performance test shows that the EQUIPMENT does not achieve the warranted performance figures as per Annex F within a reasonable period of time to be agreed between the Parties, due to reasons attributable to the SUPPLIERS and the SUPPLIERS does not start to make the necessary corrections for attaining the performance levels stipulated in Annex F within the period as per Clause 10.5, the PURCHASER shall be entitled to claim the respective liquidated damages as provided in Annex F immediately.

Upon payment of such liquidated damages the PURCHASER shall issue a release statement to the SUPPLIERS (hereinafter referred to as “Release Statement”) from the responsibilities to achieve the failed specific performance warranty, as per Annex F. In the event, the PURCHASER does not unreasonably issue the Release Statement within 15 days from the payment of such liquidated damages; the SUPPLIERS shall be able to issue the “Release Statement” on behalf of the PURCHASER.

 

10.8 In case a performance test cannot be carried out within 15 months after final delivery as per Clause 3, or the operation books do not show the achievement of the performance figures as per Annex F by that time for reasons not attributable to the SUPPLIERS, the PURCHASER shall issue a Certificate of Technical Acceptance, and the SUPPLIERS shall be released from any responsibility regarding the performance of the EQUIPMENT. If the SUPPLIERS have paid the maximum amount of liquidated damages provided for in Annex F, Clause 10.7 shall be applied.

 

Clause 11. ASSIGNMENT AND SUBCONTRACTING AND SUCCESSORS

The SUPPLIERS may use parts of the EQUIPMENT supplied by qualified subcontractors having a quality control system and capability satisfactory to the SUPPLIERS; however, subcontracting shall not relieve the SUPPLIERS from full and entire responsibility for performance of its obligations and its subcontractors in accordance with this Contract.

POLYSIUS DO BRASIL LTDA might be merged with a wholly-owned affiliate of THYSSENKRUPP POLYSIUS AG and the terms and conditions of this Contract shall be binding to it respective successor.


Clause 12. INTELLECTUAL PROPERTY RIGHTS

 

12.1. The SUPPLIERS shall indemnify the PURCHASER against all claims of infringement of any patent, registered design, copyright, trade mark or trade name or other intellectual property right provided that all of the following conditions are satisfied:

 

  (i) The claim or proceedings arise out of the design, construction, manufacture or use of the EQUIPMENT supplied by the SUPPLIERS.

 

  (ii) The infringement was not caused by any use of the EQUIPMENTS otherwise than for the purpose indicated by or reasonably to be inferred from Annex E.

 

  (iii) The infringement was not caused by the use of any EQUIPMENT in association or combination with any equipment not supplied by the SUPPLIERS, unless such association or combination was performed by Loesche GmbH or disclosed to the SUPPLIERS prior to the date of signing of the Contract, or was not reasonably to be inferred from the specification.

 

  (iv) The infringement or allegation of infringement was not a necessary consequence of the SUPPLIERS following the design or specific written instructions of the PURCHASER.

 

12.2 If during the execution of this Contract industrial property rights or copyrights might be generated, those belong to the SUPPLIERS and the PURCHASER herewith already obliges itself to observe secrecy regarding those rights and to render every assistance necessary for the SUPPLIERS to make the arrangements for the registration with the competent organ.

 

12.3 The industrial property of the SUPPLIERS such as drawings, patents, copyrights, data, calculations and other elaborations, know-how, etc. put at the disposal of the PURCHASER within the scope of this Contract shall neither be transferred to the PURCHASER nor shall any license for the exploitation of the industrial property as mentioned above be issued.

 

Clause 13. CONFIDENTIALITY

 

13.1 During the term of this Contract and for a period of five (5) years thereafter, the parties shall keep all information disclosed or otherwise made available pursuant to or in the course of this Contract, whether orally or in any other manner, hereinafter refer to “Confidential Information”, strictly confidential and it shall not disclose any Confidential Information to any third parties without having obtained the other party’s prior express written permission to do so, unless specifically provided for herein below.

 

13.2 The obligation of confidentiality imposed upon the parties pursuant this Clause 13 shall not apply to any information (i) that was already in the possession of the PURCHASER at the time of disclosure, or is rightfully obtained from a source other than from the SUPPLIERS or vice versa; (ii) which at any time becomes available to the public or is or has gone into the public domain through no fault of the PURCHASER or vice versa; (iii) which, after disclosure by the SUPPLIERS to the PURCHASER, is at any time lawfully obtained by the PURCHASER from third parties who are under no confidential obligation to the SUPPLIERS or vice versa; or (iv) which is required by law to be disclosed by the receiving Party or (v) pursuant to an order of a court or administrative body of competent jurisdiction or government agency, provided that the PURCHASER shall notify the SUPPLIERS in the event the PURCHASER elects to legally contest, request confidential treatment, or otherwise avoid such disclosure or vice versa.

 

13.3 Notwithstanding the aforementioned, the SUPPLIERS shall be allowed to publish the basic data of the PROJECT in its webpage, brochures and new releases, after written authorization from the PURCHASER. The PURCHASER shall not unreasonably withhold that authorization.


Clause 14. RESPONSIBILITY AND LIQUIDATED DAMAGES

 

14.1. The SUPPLIERS shall be responsible exclusively in accordance with the terms in this Clause 14.

 

14.2. The parties shall in no event be liable for any indirect, consequential or accidental losses and damages, such as, but not limited to loss of use of the equipment and services, loss of profit or loss of production, no matter if those are based on this contract, tort, violation of accessory obligations or any other reclamations resulting from loss of production and loss of profit.

 

14.3. In case the SUPPLIERS does not comply with its delivery dates stipulated in the Contract, they shall be subject to liquidated damages corresponding to 0,5 % of the FOB value of the section of the EQUIPMENT in delay per each full week in delay, counted from the beginning of the non-fulfillment until effective fulfillment of the obligation, up to a maximum amount corresponding to 5% of the section of the EQUIPMENT in delay.

 

14.4. The maximum amount of liquidated damages to be paid under this Contract for the reason of delay shall be limited to 5% of the FOB price of the plant section in delay. The PURCHASER shall not be entitled to any liquidated damages for delay in the event the time schedule for the PROJECT is not affected by the SUPPLIERS’S delay.

 

14.5. The Parties agree that the reference value for the calculation of all possible indemnifications stipulated in this Contract shall be the prices stipulated in Annex A and that the total maximum responsibility of the SUPPLIERS towards the PURCHASER for the execution of this Contract, including the obligation to pay liquidated damages for delay as set in Clause 14.3 or for nonperformance as set in Clause 10.7 shall be expressly limited to 10 % of the contract price.

 

14.6 The whole liability and responsibility of the parties are agreed upon completely and exclusively in this Contract. Whenever a right and/or remedy is stipulated in the Contract such right and/or remedy shall be the sole right and/or remedy regarding the subject and other rights and/or remedies shall be excluded. Notwithstanding the aforementioned, the SUPPLIERS hereby agrees to indemnify, defend and hold harmless the PURCHASER, and any of its subsidiaries, parents or affiliates, and their respective directors, officers, agents, employees and designees, from and against any and all losses, claims, liabilities, injuries, damages and expenses, including, without limitation, attorneys’ fees and court costs, arising out of, or occurring in connection with, (i) the performance or lack of performance by the SUPPLIERS of its duties and obligations under or pursuant to this Contract, and/or (ii) any error, omission or act (negligent or otherwise) by the SUPPLIERS, or its employees, agents, affiliates or other representatives.

The whole liability and responsibility of the SUPPLIERS is agreed upon completely and exclusively in this Contract, and shall be limited to 10% of the Contract Price whether such liability arises from anyone or more claims or actions for breach of contract, tort (including negligence), delayed completion, warranty, indemnity, strict liability or otherwise. Whenever a right and/or remedy is stipulated in the Contract such right and/or remedy shall be the sole right and/or remedy regarding the subject and other rights and/or remedies shall be excluded.


Clause 15. VARIATIONS AND SEVERABILITY

No amendment, addition, variation, or modification of any term or provision of this Contract shall be effective unless both Parties confirm it by a written addendum, duly executed.

If, for any reason whatsoever, any provision of this Contract is held to be invalid, illegal or ineffective, such provision shall be replaced by the Parties by an admissible one, aiming at the same economic and legal results and the validity, legality and effectiveness of the remaining provisions of this Contract shall not thereby be affected or compromised in any manner.

 

Clause 16. FORCE MAJEURE

 

16.1 Neither Party shall be liable for delay or failure in performing all or any part of this Contract to the extent that its performance has been obstructed due to a Force Majeure Event. Force Majeure as used in this Contract shall mean any event and circumstances beyond the control of the Parties. Such events shall include but shall not be limited to fires, explosions, flood, facts of the elements, acts of public enemies, sabotage, wars, riots, civil or political disturbance, interference by military authorities, prohibitions of exports or imports, epidemics, pandemics.

 

16.2 If an event of Force Majeure occurs the time stipulated for the fulfilment of the obligations of the affected Party shall be extended or suspended for a period equal to the duration of such event or circumstance, without any liability, provided that the Party so affected informs the other promptly in writing or by e-mail or facsimile together with supporting documents confirming the event which causes such Force Majeure. Such notice shall set forth in reasonable details the nature of the Force Majeure and the best estimate by the Party so claiming of the duration thereof. The Party so affected shall not be liable to the other for damages caused by the occurrence of a Force Majeure event. In the event of Force Majeure, the Parties shall immediately consult with each other to find an equitable solution and shall use their best efforts to minimize the consequences of such Force Majeure event.

 

16.3 As soon as reasonably possible after the end of the Force Majeure event the affected Party shall notify the other Party in writing that the Force Majeure event has ceased and resume the performance of its obligations under this Contract.

 

16.4 In the event that a case of Force Majeure persists for duration of sixty (60) or more days, the Parties shall convene and mutually agree how to proceed.

 

Clause 17. TERMINATION

 

17.1 The Parties may terminate this Contract by a written notice if the other Party becomes bankrupt or insolvent, goes into liquidation, has a receiving or administration order made against it, or carries on business under a receiver

 

17.2 THE SUPPLIERS may terminate this Agreement in the event that the PURCHASER unjustifiably delays payments due for more than sixty (60) days and in the event of Clause 21.2;

 

17.3 THE PURCHASER may terminate this Agreement in the event that the SUPPLIERS unjustifiably delay the supply of the EQUIPMENT for more than sixty (60) days;

 

17.4 In the event of termination due to any reasons not attributable to the SUPPLIERS, the SUPPLIERS shall be compensated for all such actual, reasonable and duly evidenced costs which have been occurred until the date of termination, not to exceed the Contract Price, which means for:

 

  (i) All equipment ordered and already started manufacturing;

 

  (ii) All cancellation fees incurred by the SUPPLIERS, and;

 

  (iii) All engineering work already executed.


After the SUPPLIERS has received the compensation, the Letter of Credits mentioned at Clause 4.2, shall hereafter be voided automatically.

 

17.5 All other rights and/or remedies of the PURCHASER with regard to the termination reason shall be expressly excluded.

 

Clause 18. INSURANCE

 

18.1. All relevant Contract insurances shall be provided by the PURCHASER at his cost and the insurances so provided and maintained by the PURCHASER shall include a waiver of subrogation, which shall state that the insurer waives all right of subrogation against the SUPPLIERS, its representatives, employees, agents, affiliates and Sub-Suppliers. The PURCHASER shall indemnify and hold the SUPPLIERS harmless for all and any claims which may arise against SUPPLIERS in this regard. All relevant Contract insurances means: EQUIPMENT Transport Insurance, All Risk Insurance with the SUPPLIERS co-insured.

 

18.2 It is a condition of the Contract that the PURCHASER shall authorize the insurers to pay any insurance claim arising out of the Contract direct to the SUPPLIERS without any deduction except in respect of the stipulated insurances.

 

Clause 19. NOTICES

 

19.1 Any notice or communication to be made hereunder by the SUPPLIERS to the PURCHASER shall be addressed as follows:

Mr. Juan Teevin

Piura Cement Plant Project Manager

Cementos Pacasmayo S.A.A.

Calle La Colonia N° 150, Urb. El Vivero

Lima 33, Peru

Email: jteevin@cpsaa.com.pe

Tel: (511) 317-6000, Ext.: 2078

 

19.2 Any notice or communication to be made hereunder by the PURCHASER to the SUPPLIERS shall be addressed as follows:

Ariel Edgardo Gamburgo

Polysius do Brasil

Dept. 100 – Cordinación de Proyectos / Contract Management

Av. Brig. Faria Lima, 1572 – 14º andar

CEP 01451-917 São Paulo – SP - Brasil

Phone: +55 11 3811 4459 /

+55 11 98254 2385

E-mail address: ariel.gamburgo@thyssenkrupp.com

 

19.3 Notices can also be made to any other address or person that the Parties may inform to each other during the term of this Contract.

 

19.4 Any correspondence between the Parties shall be in the English language.


Clause 20. GOVERNING LAW AND DISPUTE RESOLUTION

 

20.1 This Contract shall be governed by and construed in accordance with the laws of Peru and Rules of the United Nations Convention on Contracts for the International Sale of Goods shall apply supplementary.

 

20.2 Negotiation

If a dispute arises between the Parties relating to or arising out of this Contract, then within thirty (30) days of a Party in writing notifying the other Party of a dispute, senior representatives from each Party must meet and use reasonable endeavours acting in good faith to resolve the dispute.

 

20.3 Mediation

If a dispute arising under this Contract is not resolved within 15 days of notification of the dispute under Clause 20.2, the Parties will, if mutually agreed, submit the matter to mediation before two mediators, each one to be appointed by the CEO’s of both parties. The mediation process will cease if the dispute is not settled within thirty (30) days of the last mediator being appointed, or such longer period as the Parties may agree.

 

20.4 Arbitration

If a dispute arising under this Contract is not resolved under clause 20.3 (or if no agreement is reached to refer the dispute to mediation within thirty (30) days of notification of the dispute under clause 20.3, either Party may, by written notice to the other, refer the dispute to arbitration in accordance with the Rules for Arbitration of ICC (International Chamber of Commerce, Paris) by three (3) arbitrators appointed in accordance with the said Rules. The arbitration shall be conducted in English and held in the city of Paris, France, unless all parties to the arbitration agree otherwise. The determination of the arbitrators shall be final and binding upon the Parties and the enforcement of the award may be entered in any court having jurisdiction for such enforcement.

 

Clause 21. COMING INTO FORCE OF THE CONTRACT

 

21.1. This Contract shall come into force upon the signature by all Parties, the receipt of the pre-advance payment as per Clause 4.2 and emission of the Letter of Credit according to Clause 4.2.

 

21.2 In case the Letters of Credit is not issued within 30 days after signing the Contract and/or the advance payments according to Clause 4.2 have not been made by the PURCHASER within 30 days after signing the Contract, the Parties shall meet to negotiate any further procedure.


IN WITNESS WHEREOF , the Parties have caused this Contract to be duly executed by their legal representatives in two (2) counterparts of identical content, in the presence of the undersigned witnesses.

PLACE AND DATE: September 28 th , 2012

 

Cementos Pacasmayo S.A.A.     Cementos Pacasmayo S.A.A.

/s/ Humberto Nadal del Carpio

   

/s/ Carlos Julio Pomarino

Humberto Nadal     Carlos Julio Pomarino

 

THYSSENKRUPP POLYSIUS AG     POLYSIUS DO BRASIL LTDA.

/s/ Erwin Clees

   

/s/ Erwin Clees

Erwin Clees     Erwin Clees


Annex I:

AFFIDAVIT REGARDING THE ENGINEERING

September 28 th , 2012

Gentlemen:

Cementos Pacasmayo S.A.A .

I write this letter in my condition of representative of POLYSIUS DO BRASIL LTDA. , in order to issue the present Affidavit, by means of which we certificate that by virtue of the Engineering Services referred in the “Equipment Supply Contract N° 2020-0128/2012”, our company will render technical assistant services to Cementos Pacasmayo S.A.A. to develop the Basic and Detailed Engineering for the Cementos Piura 3000 tpd of Clinker Greenfield Plant.

The referred services will be rendered during the following term: since the day hereof to the term indicated at Clause 3.3 of the Contract above mentioned. This term could be extended if both parties agree so. For these services rendering, we will send the corresponding invoices, we will pay the corresponding local taxes, we will register them in our accounting books and we will include them in the Statement to be filled before the corresponding public entities.

Signed on September 28 th , 2012, as you requested and according to the section f) of the article 56 of the Peruvian Income Tax Law, according to the Law No. 28442 amendment, in force since January 1, 2005; and other complementary and amended norms.

 

Sincerely,

 

POLYSIUS DO BRASIL LTDA.


Spanish Translation

DECLARACIÓN JURADA

28 de Septiembre de 2012

Sres.

Cementos Pacasmayo S.A.A .

De mi mayor consideración:

Me dirijo a ustedes en mi calidad de representante de POLYSIUS DO BRASIL LTDA. , a efectos de emitir la presente declaración jurada, la cual tiene por finalidad certificar que en virtud del Contrato N° 2020-0128/2012”, nuestra empresa prestará servicios de Asistencia Técnica a Cementos Pacasmayo S.A.A. para desarrollar la Ingeniería Básica y de Detalle para su nueva Planta de Cemento de 3000 tpd de Clinker en Piura, Perú.

Los referidos servicios serán prestados desde la fecha de emisión del presente documento hasta el término del plazo indicado en la Cláusula 3.3 del contrato antes mencionado. Dicho plazo podrá ser ampliado por acuerdo de las partes. Por la prestación de dichos servicios, enviaremos las respectivas facturas, nos haremos cargo de los impuestos locales en Alemania, correspondientes a las mismas, las asentaremos en nuestros libros contables y las incluiremos en las declaraciones que deban presentarse ante los organismos públicos correspondientes en Alemania.

La presente declaración se realiza a los 28 días del mes de Septiembre de 2012, a vuestra solicitud y en cumplimiento de lo establecido en el inciso f) del Artículo 56° de la Ley del Impuesto a la Renta peruana, según modificación introducida por la Ley N° 28442, vigente a partir del 1 de enero de 2005.

 

Atentamente,

 

POLYSIUS DO BRASIL LTDA.

EXHIBIT 4.3

Addendum 1 to the

EQUIPMENT SUPPLY CONTRACT

BETWEEN

Cementos Pacasmayo S.A.A.

Calle La Colonia 150

Urbanización El Vivero, Monterrico

Lima 33

Peru

AND

THYSSENKRUPP POLYSIUS AG

Graf – Galen – Str. 17

59269 Beckum

Germany

AND

POLYSIUS DO BRASIL LTDA.

Av. Brig. Faria Lima, 1572 – 14º andar

01451-917 São Paulo – SP

Brasil

Under the leadership of Polysius do Brasil Ltda., hereinafter called Polbras


This Addendum 1 to the Equipment Supply Contract is made and entered on February 21 th , 2013 by and between Cementos Pacasmayo S.A.A. , a company duly organized under the laws of Peru, having its principal place of business at Calle La Colonia N° 150, Urb. El Vivero, Santiago de Surco, Lima, Peru (hereinafter called “PURCHASER”), and THYSSENKRUPP POLYSIUS AG having its head offices at Graf – Galen-Strasse 17, 59269 Beckum, Germany, (hereinafter called “POLYSIUS GERMANY”) and POLYSIUS DO BRASIL LTDA. having its head offices at Av. Brig. Faria Lima, 1572 – 14º andar, 01451-917 São Paulo – SP, Brasil (hereinafter called “POLBRAS”), both collectively referred to as “the “SUPPLIERS ”.

The PURCHASER and the SUPPLIERS are hereinafter individually referred to as “Party” and collectively referred to as “Parties”.

WHEREAS:

 

I.

The PURCHASER and the SUPPLIERS signed the Equipment Supply Contract on September 28 th , 2012, according to a layout of the Plant approved by the Parties (hereinafter the “Contract”).

 

II. The Parties have approved a new layout of the Plant, as a consequence of which, the scope of the supply of equipment for the PROJECT has changed.

 

III. In addition to the Basic Engineering and Detailed Engineering for the EQUIPMENT originally included in the scope of the Contract, the Parties desire to include in the scope of the Contract the engineering required for the PROJECT included in Annex E hereto (hereinafter, the “CIVIL ENGINEERING”).

 

IV. Due to the above-mentioned changes in the scope of the Contract, the Parties desire to amend Annexes A (Pricelist), B (Scope of Supply), D (Time Schedule), E (Technical Specification) and H (Advanced Payment and Performance Bond) of the Contract.

NOW, THEREFORE , the Parties have agreed to enter into this Addendum, which shall be governed by the following terms and conditions:

 

Clause 1. OBJECT

The object of this Addendum is to change the following clauses and annexes of the Contract:

 

   

Clause 1. OBJECT

 

   

Clause 3. DURATION TIME, DELIVERY SCHEDULE AND TERMS OF DELIVERY

 

   

Clause 4. PRICE AND PAYMENT TERMS

 

   

Clause 5. THE PURCHASER’S OBLIGATIONS

 

   

Clause 6. THE SUPPLIERS’S OBLIGATIONS

 

   

Clause 7. LIABILITY FOR DEFECTIVE ENGINEERING AND FORM DEFECTIVE CIVIL ENGINEERING

 

   

Clause 10. TECHNICAL ACCEPTANCE OF THE EQUIPMENT

 

   

Clause 12. INTELLECTUAL PROPERTY RIGHTS

 

   

Clause 14. RESPONSIBILITY AND LIQUIDATED DAMAGES

 

   

Clause 17. TERMINATION

 

   

Annex A. PRICELIST

 

   

Annex B. SCOPE OF SUPPLY

 

   

Annex D. TIME SCHEDULE

 

   

Annex E. TECHNICAL SPECIFICATION

 

   

Annex H. ADVANCED PAYMENT AND PERFORMANCE BOND


Clause 2. MODIFICATION OF CLAUSE 1 OF THE CONTRACT

The Parties agree to modify Section 1.1 and add Section 1.2, of Clause 1 (OBJECT) of the Contract according to the following terms:

“Clause 1. OBJECT

 

  1.1 The object of this Contract is (i) the supply by THYSSENKRUPP POLYSIUS AG and POLYSIUS DO BRASIL LTDA. of the Equipment mentioned at Annex “B” and further described in the technical specification in Annex E attached hereto (hereinafter referred to as “EQUIPMENT”), and (ii) the preparation and supply of the Basic and Detailed Engineering for the EQUIPMENT included in Annex E, (hereinafter referred to as “ENGINEERING”), for a new cement plant located in Piura, Peru.

 

  1.2 Additionally, the object of this Contract includes the preparation and supply of the civil engineering services (additional and separate from the ENGINEERING) referred to in Annex E (hereinafter referred to as the “CIVIL ENGINEERING”).

The CIVIL ENGINEERING shall be prepared and supplied by the SUPPLIERS according to the provisions set forth in the Technical Specifications stated in Annex E.

 

Clause 3. MODIFICATION OF CLAUSE 3 OF THE CONTRACT

The Parties agree to add Section 3.4 of Clause 3 (DURATION TIME, DELIVERY SCHEDULE AND TERMS OF DELIVERY) of the Contract according to the following terms:

“Clause 3. DURATION TIME, DELIVERY SCHEDULE AND TERMS OF DELIVERY

(…)

 

  3.4

Delivery Schedule of the CIVIL ENGINEERING: 12 months from coming into force of Addendum 1 to the Contract, dated February 8 th, 2013, according to Clause 13 of the Addendum, as detailed in Annex “E”.”

 

Clause 4. MODIFICATION OF CLAUSE 4 OF THE CONTRACT

The Parties agree to modify Sections 4.1, 4.2, 4.4 and 4.5 of Clause 4 (PRICE AND PAYMENT TERMS) of the Contract according to the following terms:

“Clause 4. PRICE AND PAYMENT TERMS

 

  4.1 For the supply of the EQUIPMENT, ENGINEERING and CIVIL ENGINEERING, the PURCHASER shall pay to THYSSENKRUPP POLYSIUS AG the price of € 17,723,920.00 (Seventeen Million, Seven Hundred and Twenty Three Thousand, Nine Hundred and Twenty Euros) and to POLYSIUS DO BRASIL LTDA. the price of US$ 27,833,008.00 (Twenty Seven Million, Eight Hundred Thirty Three Thousand, and Eight American Dollars) (hereinafter referred to as “Contract Price”).

 

   

For the EQUIPMENT: € 17,723,920.00 (Seventeen Million, Seven Hundred Twenty Three Thousand, Nine Hundred and Twenty Euros) to THYSSENKRUPP POLYSIUS AG and US$ 22,701,008.00 (Twenty Two Million Seven Hundred One Thousand and Eight American Dollars) to POLYSIUS DO BRASIL LTDA. (herein after referred to as the “EQUIPMENT Price”).

 

   

For the ENGINEERING: US$ 1,797,000.00 (One Million, Seven Hundred and Ninety Seven Thousand American Dollars) to POLYSIUS DO BRASIL LTDA. (herein after referred to as the “ENGINEERING Price”).

 

   

For the CIVIL ENGINEERING: US$ 3,335,000.00 (Three Million, Three Hundred and Thirty Five Thousand American Dollars) to POLYSIUS DO BRASIL LTDA. (herein after referred to as the “CIVIL ENGINEERING Price”).


The Parties agree that the prices for the supply of the EQUIPMENT, the ENGINEERING and the CIVIL ENGINEERING are fixed, and shall remain valid and invariable until the fulfillment of all SUPPLIERS’s obligations, according to the terms of this Contract.

 

  4.1.1 FOB prices for each section of the Plant (EQUIPMENT) can be found at Annex A.

 

  4.1.2 The scope of the ENGINEERING and the CIVIL ENGINEERING can be found at Annex B and E.

 

  4.2 Payment Conditions

For values in Euro to be paid to THYSSENKRUPP POLYSIUS AG :

30% of the EQUIPMENT Price of the Contract, according to the following: (i) the sum of € 3,316,262.40 (Three Million, Three Hundred and Sixteen Thousand, Two Hundred and Sixty Two and 40/100 Euros) has already been paid, against submittal of invoice and the Advance Payment Bond as per Annex H; (ii) the sum of € 2,000,913.60 (Two Million, Nine Hundred and Thirteen and 60/100 Euros), payable within 15 days after signing Addendum 1 to the Contract, against submittal of invoice and the modified Advance Payment Bond as per Annex H. This Bond shall be valid and effective until the completion of the supply of the EQUIPMENT and shall be automatically and proportionally reduced without the prior approval of the PURCHASER of the value of each commercial invoice issued to the PURCHASER under this Contract.

70% of the Contract Price, payable out of a Letter of Credit (L/C), according to the following:

 

   

For the EQUIPMENT Price, against presentation of THYSSENKRUPP POLYSIUS AG ’s documents of dispatch, or warehouse receipt, pro rata supplies, and the Performance Bond as per Annex H, for the last major shipment. This Bond shall be valid and effective until the issuance of the Certificate of Technical Acceptance by the PURCHASER. However, this Performance Bond shall expire at the latest 48 months after effectiveness of this Contract.

Documents of dispatch means: Bill of Lading or Airway Bill or Warehouse Receipt, Packing List and Invoice. Documents of dispatch shall be delivered by THYSSENKRUPP POLYSIUS AG to the PURCHASER via-email, immediately after the departure of the carrying vessel from the Port of Shipment.

To cover the payment of 70% of the Price Contract, within 15 days after signing Addendum 1 to the Contract, the PURCHASER shall modify the value of the irrevocable Letter of Credit (L/C), to the amount of € 12,406,744.00 (Twelve Million, Four Hundred and Six Thousand, Seven Hundred and Forty Four Euros) in favor of THYSSENKRUPP POLYSIUS AG . The L/C shall be advised and confirmed by a First Class International Bank in Germany, acceptable to THYSSENKRUPP POLYSIUS AG , at THYSSENKRUPP POLYSIUS AG request. All costs, charges and related expenses outside Peru shall be borne by THYSSENKRUPP POLYSIUS AG .

For values in US Dollars to be paid to POLYSIUS DO BRASIL LTDA. :

30% of the ENGINEERING Price, according to the following: (i) 30% of the price of the Basic and Detailed Engineering has been paid, against submittal of invoice and the Advance Payment Bond as per Annex H; (ii) 30% of CIVIL ENGINEERING Price, payable within 15 days after signing Addendum 1 to the Contract, against submittal of invoice and the modified Advance Payment Bond as per Annex H.


This Bond shall be valid and effective until the completion of the supply of the ENGINEERING and the CIVIL ENGINEERING and shall be automatically and proportionally reduced without the prior approval of the PURCHASER of the value of each commercial invoice issued to the PURCHASER under this Contract.

30% of the EQUIPMENT Price, according to the following: (i) the sum of US$ 4,851,962.40 (Four Million, Eight Hundred and Fifty One Thousand, Nine Hundred and Sixty Two and 40/100 American Dollars) has been paid, against submittal of invoice and the Advance Payment Bond as per Annex H; (ii) the sum of US$ 1,958,340.00 (One Million, Nine Hundred and Fifty Eight Thousand, Three Hundred and Forty American Dollars), payable within 15 days after signing Addendum 1 to the Contract, against submittal of invoice and the modified Advance Payment Bond as per Annex H.

This Bond shall be valid and effective until the completion of the supply of the EQUIPMENT and shall be automatically and proportionally reduced without the prior approval of the PURCHASER of the value of each commercial invoice issued to the PURCHASER under this Contract.

70% of the Contract Price, payable out of a Letter of Credit (L/C), according to the following:

 

   

For the EQUIPMENT Price, against presentation of POLYSIUS DO BRASIL LTDA. ’s documents of dispatch, or warehouse receipt, pro rata supplies, and the Performance Bond up to the 10% of the Contract Price, as per Annex H, for the last major shipment. This Bond shall be valid and effective until the issuance of the Certificate of Technical Acceptance by the PURCHASER.

Documents of dispatch means: Bill of Lading or Airway Bill or Warehouse Receipt, Packing List and Invoice. Documents of dispatch shall be delivered by POLYSIUS DO BRASIL LTDA. to the PURCHASER via-email, immediately after the departure of the carrying vessel from the Port of Shipment.

 

   

For the ENGINEERING Price, against the PURCHASER’s confirmation receipt of the ENGINEERING documentation to POLYSIUS DO BRASIL LTDA . If POLYSIUS DO BRASIL LTDA. does not receive the PURCHASER’s confirmation receipt within 15 days from the delivery of ENGINEERING documentation, POLYSIUS DO BRASIL LTDA. shall be able to present the courier delivery note under the L/C, instead of PURCHASER’s confirmation receipt. ENGINEERING documentation means: General Layout and General Arrangement Drawings. Consequently, the 70% of the ENGINEERING Price, shall be paid by the PURCHASER in two (02) tranches:

 

   

US$ 628,950.00 (Six Hundred and Twenty Eight Thousand and Nine Hundred and Fifty American Dollars) for the General Layout has already been paid, against submittal of invoice.

 

   

US$ $ 628,950.00 (Six Hundred and Twenty Eight Thousand and Nine Hundred and Fifty American Dollars) for the General Arrangement Drawings.

 

   

For the CIVIL ENGINEERING, against the PURCHASER’s confirmation receipt of the CIVIL ENGINEERING documentation to POLYSIUS DO BRASIL LTDA. If POLYSIUS DO BRASIL LTDA. does not receive the PURCHASER’s confirmation receipt within 15 days from the delivery of CIVIL ENGINEERING documentation, POLYSIUS DO BRASIL LTDA. shall be able to present the courier delivery note under the L/C, instead of PURCHASER’s confirmation receipt. CIVIL ENGINEERING documentation means the designs, drawings and specifications listed below. Consequently, the 70% of the CIVIL ENGINEERING Price, shall be paid by the PURCHASER as follows:

 

   

15% for the Foundation Drawings for main Process Buildings; raw grinding, DOPOL Tower, Kiln Bases, Burner Platform, Homogenizing Silo, Clinker Silo, Cement Silos, Cement Grinding and Petcoke Grinding and Civil Design of the DOPOL Tower from the ground up to the Kiln Platform (inclusive).


   

10% for the Civil Design of DOPOL Tower from the kiln platform to the top, Grinding Buildings, Silo Walls and Kiln Base.

 

   

15% for the Civil Design of Cement Silos, Homo Silo, Packing and Cooler Building.

 

   

10% for the Design of Stockyard Roofs and Belt Conveyor Supports.

 

   

10% for the Design of Facility and Administration Buildings.

 

   

10% for the Design of External Installations (Streets, Draining, Lighting, etc) and Remaining Civil Engineering.

To cover the payment of 70% of the Price Contract, within 15 days after signing Addendum 1 to the Contract, the PURCHASER shall modify the value irrevocable Letter of Credit (L/C), in the amount of US$ 19,483,105.60 (Nineteen Million, Four Hundred and Eighty Three Thousand, One Hundred and Five and 60/100 American Dollars) in favor of POLYSIUS DO BRASIL LTDA . . The L/C shall be advised and confirmed by a First Class International Bank in Germany, acceptable to POLYSIUS DO BRASIL LTDA. , at POLYSIUS DO BRASIL LTDA. request. All costs, charges and related expenses outside Peru shall be borne by POLYSIUS DO BRASIL LTDA.

(…)

 

  4.4 Taxes and Duties

All taxes (until FOB port of origin in the case of the EQUIPMENT) are included in the supply. Local taxes or duties, such as but not limited, to customs clearance, import taxes, any Peruvian withholding tax and IVA are expressly not included and shall be borne by the PURCHASER.

 

  4.5 Invoices

 

  4.5.1 SUPPLIERS shall deliver to the PURCHASER two (02) originals and two (02) copies of each respective invoice for each payment milestone as provided for in Section 4.2 above for the amounts indicated above.

 

  4.5.2 The invoices issued in connection with the payment milestones set forth in Section 4.2 above shall state the following:

 

   

For the EQUIPMENT:

 

   

SUPPLIERS’s Name and Address;

 

   

EQUIPMENT’s description;

 

   

Unit price and total amount;

 

   

Currency.

 

   

For the ENGINEERING:

 

   

SUPPLIERS’s Name and Address;

 

   

ENGINEERING description;

 

   

Unit price;

 

   

Total amount;

 

   

Peruvian withholding Tax (15% of total amount);

 

   

Net Price;

 

   

Currency.

 

   

For the CIVIL ENGINEERING:

 

   

SUPPLIERS’s Name and Address;

 

   

CIVIL ENGINEERING description;

 

   

Unit price;

 

   

Total amount;

 

   

Peruvian withholding Tax (15% of total amount);

 

   

Net Price;

 

   

Currency.”


Clause 5. MODIFICATION OF CLAUSE 5 OF THE CONTRACT

The Parties agree to modify Section 5.6 of Clause 5 (THE PURCHASER’S OBLIGATIONS) of the Contract according to the following terms:

 

  “Clause 5. THE PURCHASER’S OBLIGATIONS

(…)

 

  5.6 Obtain and maintain, at its own cost, any and all licenses and/or authorizations which may be necessary for the execution of the PROJECT.

For such purposes, the SUPPLIERS undertake to colaborate with the PURCHASER and provide the PURCHASER with all neccesary technical and legal documents within the Scope of Supply provided for in this Contract.

 

Clause 6. MODIFICATION OF CLAUSE 6 OF THE CONTRACT

The Parties agree to modify Sections 6.1 and 6.2 of Clause 6 (THE SUPPLIERS’S OBLIGATIONS) of the Contract according to the following terms:

“Clause 6. THE SUPPLIERS’S OBLIGATIONS

 

  6.1. Supply the EQUIPMENT, the ENGINEERING and the CIVIL ENGINEERING in accordance with the specifications described in Annex A, B, D, E and F.

 

  6.2 Provide the necessary technical documents according to the requirements of the Contract, including manuals, projects, designs, plans, related to: (i) the supply, operation and maintenance of the EQUIPMENT; and, (ii) the supply of the ENGINEERING and the CIVIL ENGINEERING; all of which shall be in the English and/or Spanish language.”

 

Clause 7. MODIFICATION OF CLAUSE 7 OF THE CONTRACT

The Parties agree to modify Section 7.2 of Clause 7 (WARRANTIES) of the Contract according to the following terms:

“Clause 7. WARRANTIES

 

  7.2 Liability for Defective ENGINEERING and/or for Defective CIVIL ENGINEERING During the WARRANTY PERIOD as per item 7.1.2, the SUPPLIERS’S shall be obliged to correct faulty ENGINEERING and faulty CIVIL ENGINEERING by replacement of any error or omission detected in the drawings, manuals and catalogues which have been supplied as per Annex E within 60 days as from the date the SUPPLIERS have received the respective documents from the PURCHASER as per Section 5.1. However, it shall be expressly agreed that the SUPPLIERS shall have no liability for errors or omissions detected in the documents which have been supplied as per Annex B and E unless such error or omission is attributable to the SUPPLIERS, and not based on incorrect information, drawings or documents provided by the PURCHASER.”

 

Clause 8. MODIFICATION OF CLAUSE 10 OF THE CONTRACT

The Parties agree to modify Section 10.8 of Clause 10 (TECHNICAL ACCEPTANCE OF THE EQUIPMENT) of the Contract according to the following terms:

“Clause 10. TECHNICAL ACCEPTANCE OF THE EQUIPMENT

10.8 In case a performance test cannot be carried out within 48 months from the execution of this Contract or the period to be established in the EPC Agreement, if such is executed (whichever occurs first), or the operation books do not show the achievement of the


performance figures as per Annex F by that time for reasons not attributable to the SUPPLIERS, the PURCHASER shall issue a Certificate of Technical Acceptance, and the SUPPLIERS shall be released from any responsibility regarding the performance of the EQUIPMENT. If the SUPPLIERS have paid the maximum amount of liquidated damages provided for in Annex F, Section 10.7 shall be applied.”

 

Clause 9. MODIFICATION OF CLAUSE 12 OF THE CONTRACT

The Parties agree to modify Section 12.1 of Clause 12 (INTELLECTUAL PROPERTY RIGHTS) of the Contract according to the following terms:

“Clause 12. INTELLECTUAL PROPERTY RIGHTS

 

  12.1. The SUPPLIERS shall indemnify the PURCHASER against all claims of infringement of any patent, registered design, copyright, trade mark or trade name or other intellectual property right provided that all of the following conditions are satisfied:

 

  (i) The claim or proceedings arise out of the design, construction, manufacture or use of the EQUIPMENT and/or the ENGINEERING and/or the CIVIL ENGINEERING supplied by the SUPPLIERS.

 

  (ii) The infringement was not caused by any use of the EQUIPMENTS or by the ENGINEERING or by the CIVIL ENGINEERING, otherwise than for the purpose indicated by or reasonably to be inferred from Annex E.

 

  (iii) The infringement was not caused by the use of any EQUIPMENT or by the ENGINEERING or by the CIVIL ENGINEERING in association or combination with any equipment or engineering not supplied by the SUPPLIERS, unless such association or combination was performed by Loesche GmbH or disclosed to the SUPPLIERS prior to the date of signing of the Contract, or was not reasonably to be inferred from the specification.

 

  (iv) The infringement or allegation of infringement was not a necessary consequence of the SUPPLIERS following the design or specific written instructions of the PURCHASER.”

 

Clause 10. MODIFICATION OF CLAUSE 14 OF THE CONTRACT

The Parties agree to modify Sections 14.3 and 14.4 of Clause 14 (RESPONSIBILITY AND LIQUIDATED DAMAGES) of the Contract according to the following terms:

“Clause 14. RESPONSIBILITY AND LIQUIDATED DAMAGES

 

  14.3. In case the SUPPLIERS do not comply with its delivery dates stipulated in the Contract for the EQUIPMENT, they shall be subject to liquidated damages corresponding to 0,5 % of the FOB value of the section of the EQUIPMENT in delay per each full week in delay, counted from the beginning of the non-fulfillment until effective fulfillment of the obligation, up to a maximum amount corresponding to 5% of the section of the EQUIPMENT in delay.

Additionally, in case the SUPPLIERS do not comply with its delivery dates stipulated in the Contract for the ENGINEERING, they shall be subject to liquidated damages corresponding to 0,5 % of the ENGINEERING Price of the section of the ENGINEERING in delay per each full week in delay, counted from the beginning of the non-fulfillment until effective fulfillment of the obligation, up to a maximum amount corresponding to 5% of the section of the ENGINEERING in delay.

Finally, in case the SUPPLIERS do not comply with its delivery dates stipulated in the Contract for the CIVIL ENGINEERING, they shall be subject to liquidated damages corresponding to 0,5 % of the CIVIL ENGINEERING Price of the section of the CIVIL


ENGINEERING in delay per each full week in delay, counted from the beginning of the non-fulfillment until effective fulfillment of the obligation, up to a maximum amount corresponding to 5% of the section of the CIVIL ENGINEERING in delay.

 

  14.4. The maximum amount of liquidated damages to be paid under this Contract for the reason of delay in the delivery of the EQUIPMENT shall be limited to 5% of the FOB price of the EQUIPMENT section in delay. The PURCHASER shall not be entitled to any liquidated damages for delay in the event the time schedule for the PROJECT is not affected by the SUPPLIERS’S delay.

Additionally, the maximum amount of liquidated damages to be paid under this Contract for the reason of delay in the delivery of the ENGINEERING shall be limited to 5% of the ENGINEERING Price of the ENGINEERING section in delay. The PURCHASER shall not be entitled to any liquidated damages for delay in the event the time schedule for the PROJECT is not affected by the SUPPLIERS’S delay.

Finally, the maximum amount of liquidated damages to be paid under this Contract for the reason of delay in the delivery of the CIVIL ENGINEERING shall be limited to 5% of the CIVIL ENGINEERING Price of the CIVIL ENGINEERING section in delay. The PURCHASER shall not be entitled to any liquidated damages for delay in the event the time schedule for the PROJECT is not affected by the SUPPLIERS’S delay.”

 

Clause 11. MODIFICATION OF CLAUSE 17 OF THE CONTRACT

The Parties agree to modify Section 17.3 of Clause 17 (TERMINATION) of the Contract according to the following terms:

“Clause 17. TERMINATION

 

  17.3 THE PURCHASER may terminate this Contract in the event that the SUPPLIERS unjustifiably delay the supply of the EQUIPMENT, the ENGINEERING or the CIVIL ENGINEERING for more than sixty (60) days;”

 

Clause 12. MODIFICATION OF ANNEXES A, B, D, E, AND H OF THE CONTRACT

The Parties agree to modify Annexes A, B, D, E, and H of the Contract according to the terms included in Annexes A-1, B-1, D-1, E-1, and H-1 of this Addendum 1 to the Contract, respectively.

 

Clause 13. COMING INTO FORCE OF ADDENDUM 1 TO THE CONTRACT

 

13.1. This Addendum 1 to the Contract shall come into force upon the signature by all Parties, the receipt of the pre-advance payment as per Section 4.2 and modification of the Letter of Credit according to Section 4.2.

 

13.2 In case the Letters of Credit are not issued within 30 days after signing this Addendum 1 to the Contract and/or the advance payments according to Section 4.2 have not been made by the PURCHASER within 30 days after signing the Addendum, the Parties shall meet to negotiate any further procedure.

 

13.3 All other terms and conditions of the Contract signed on September 28, 2012 which had not been expressly amended hereby shall remain in full force and effect.

 

Clause 14. INTERPRETATION

The terms with capitalized letter used herein and that had not been defined in this instrument whether in singular or plural shall have, as it may correspond, the meaning ascribed to them in the Contract.


IN WITNESS WHEREOF , the Parties have caused this Addendum 1 to the Contract to be duly executed by their legal representatives in three (3) counterparts of identical content, in the presence of the undersigned witnesses.

PLACE AND DATE: Lima, February 21 st , 2013

 

Cementos Pacasmayo S.A.A.      Cementos Pacasmayo S.A.A.

/s/ Humberto Nadal del Carpio

    

/s/ Carlos Julio Pomarino

Humberto Nadal      Carlos Julio Pomarino

 

THYSSENKRUPP POLYSIUS AG      POLYSIUS DO BRASIL LTDA.

/s/ Erwin Clees

    

/s/ Erwin Clees

Erwin Clees      Erwin Clees

EXHIBIT 4.4

STEEL STRUCTURE SUPPLY CONTRACT

BETWEEN

CEMENTOS PACASMAYO S.A.A.

CALLE LA COLONIA 150

URBANIZACIÓN EL VIVERO, MONTERRICO

LIMA 33

PERU

(Hereinafter called THE PURCHASER)

AND

POLYSIUS INGENIERIA Y SERVICIOS DEL PERÚ S.A.

AV. MARISCAL BENAVIDES 207

URB. SELVA ALEGRE

AREQUIPA

PERU

(Hereinafter called THE SUPPLIER)


This Steel Structure Supply Contract (hereinafter called “Contract”) is made and entered on September 28 th , 2012 by and between Cementos Pacasmayo S.A.A. a company duly organized under the laws of Perú, having its principal place of business at Calle La Colonia 150, Urb. El Vivero, Santiago de Surco, Lima, Perú (hereinafter called the “PURCHASER”) and Polysius Ingeniería y Servicios del Perú S.A. having its principal place of business at Av. Mariscal Benavides 207, Urb. Selva Alegre, Arequipa, Perú (hereinafter called the “SUPPLIER”).

The PURCHASER and THE SUPPLIER are hereinafter individually referred to as “Party” and collectively referred to as “Parties”.

WHEREAS:

 

I. The PURCHASER owns a plant site located in Piura, Peru (hereinafter referred to as the “PURCHASER´s Plant Site”).

 

II. The PURCHASER is interested in acquiring certain steel structure from THE SUPPLIER, to be installed and used at the mentioned plant site for the new cement plant at Piura, Peru with a capacity of 3000 tpd of clinker and 230 tph of cement grinding capacity (hereinafter referred to as the “PROJECT”);

 

III. The Parties confirm their desire to negotiate a comprehensive Turnkey Engineering, Procurement, and Construction Agreement for the PROJECT (the “EPC Agreement”), which, when executed, shall supersede this Contract in all respects;

 

IV. The Parties, having agreed upon such supply and their desire to negotiate the EPC Agreement, wish to formalize their purpose in (i) this Contract, (ii) that certain Limited Notice to Proceed and Letter of Intent between the PURCHASER and the SUPPLIER dated on or about the date hereof, and (iii) that certain Comfort Letter Agreement between SUPPLIER, PURCHASER, Thyssenkrupp Polysius Ag, Polysius do Brasil Ltda., and Loesche GmbH dated on or about the date hereof (the “Comfort Letter”);

NOW, THEREFORE , the Parties have agreed to enter into this Contract, which shall be governed by the following terms and conditions:

Clause 1. OBJECT

 

1.1 The object of this Contract is the fabrication and supply by POLYSIUS INGENIERÍA Y SERVICIOS DEL PERÚ S.A. of the steel structure further described in Annexes “A” and “B” attached hereto (hereinafter referred to as “STEEL STRUCTURE”) for the PROJECT.

 

1.2 Upon execution of the EPC Agreement, the EPC Agreement shall supersede this Contract and this Contract shall be deemed automatically terminated and of no further force or effect as of such date. Notwithstanding anything to the contrary contained herein, upon any termination of this Contract without execution of the EPC Agreement, the PURCHASER shall have all ownership rights to all STEEL STRUCTURE for which the SUPPLIER has been paid and all intellectual property rights associated therewith, and the SUPPLIER shall have no claims in connection therewith. In the event the EPC Agreement is executed, transfer of title to STEEL STRUCTURE and related documentation and all intellectual property rights associated therewith, shall be governed by the EPC Agreement.

 

1.3 Notwithstanding anything to the contrary contained herein (including, without limitation, Clause 14 hereof), if the SUPPLIER unreasonably denies entering into the EPC Contract according to the terms set forth, the SUPPLIER agree to supply to the PURCHASER all the information and documentation sufficient to support the PURCHASER to find, in short term, one or more suppliers to execute the remaining matters of the scope of the PROJECT, without any additional cost.


Clause 2. PRICE AND PAYMENT TERMS

 

2.1 For the fabrication and supply of the STEEL STRUCTURE, the PURCHASER shall pay to the SUPPLIER the total price of US$ 11’807,250.00 (Eleven Million, Eight Hundred and Seven Thousand, Two Hundred and Fifty American Dollars), plus Peruvian Sales Tax (IGV), considering the supply of 3´148,600 kg. of steel structure under a fixed unit price of US$ 3.75 (Three with 75/100 American Dollars), plus Peruvian Sales Tax (IGV), per kilogram of steel structure duly supplied and weighed under this Contract (hereinafter called, the “Contract Price”).

The PURCHASER shall pay for the supply duly received and weighed at its Plant site located in Piura, Peru. Consequently, the previously stated total price is included for reference only, as the final total price will be calculated by applying the fixed unit price to the weight effectively supplied. The weight of the STEEL STRUCTURE supplied, shall be certified by a platform scale installed at the PURCHASER´s Plant Site.

The Parties agree that the Unit Price is fixed, and shall remain valid and invariable until the fulfilment of all SUPPLIER´s obligations, according to the terms of this Contract.

 

2.2 Payment conditions:

 

   

30% of the STEEL STRUCTURE Price, payable within 15 days after signing the Contract, against submittal of invoice and an Advance Payment Bond, duly advised and confirmed by a First Class Peruvian Bank acceptable to the PURCHASER, at the PURCHASER request. All costs, charges and related expenses in Peru, shall be borne by the PURCHASER. All costs, charges and related expenses outside Peru, shall be borne by the SUPPLIER. This Bond shall be valid and effective until the completion of the supply of the STEEL STRUCTURE and shall be automatically and proportionally reduced with the prior approval of the PURCHASER of the value of each commercial invoice issued to the PURCHASER under this Contract.

The parties agree that the above mentioned reductions could be effective every 03 months, prior written approval of the PURCHASER. All respective bank charges in connection with the Advance Payment Bond shall be borne by the SUPPLIER.

 

   

70% of the STEEL STRUCTURE Price shall be paid proportionately, against partial delivery of the STEEL STRUCTURE, within thirty (30) days from the presentation of the invoice, packing list, release report signed by the SUPPLIER, and the Certificate of Weight as foreseen in Clause 2.1.

To cover the payment of 70% of the Contract Price, within 30 days after signing the Contract, the PURCHASER shall open one irrevocable Letter of Credit (L/C), in the amount of US$ 8´265,075.00 (Eight Million, Two Hundred and Sixty Five Thousand, Seventy Five with 00/100 American Dollars) in favor of the SUPPLIER. The L/C shall be advised and confirmed by a First Class International Bank in Germany, acceptable to the SUPPLIER, at the SUPPLIER request. All costs, charges and related expenses in Peru, shall be borne by the PURCHASER. All costs, charges and related expenses outside Peru, shall be borne by the SUPPLIER.

Notwithstanding the foregoing, at the time the PURCHASER has paid to the SUPPLIER up to 75% of the Contract Price, the SUPPLIER shall issue a Performance Bond in favour of the PURCHASER for ten per cent (10%) of the Contract Price, for the due


fulfilment of SUPPLIER’s performance obligations as defined in this Contract. This Bond shall be valid and effective until the issuance of the Certificate of Technical Acceptance by the PURCHASER. However, this Performance Bond shall expire at the latest 48 months after effectiveness of this Contract. This Bond shall be advised and confirmed by a First Class Peruvian Bank acceptable to the PURCHASER, at the PURCHASER request. All costs, charges and related expenses in Peru, shall be borne by the PURCHASER. All costs, charges and related expenses outside Peru, shall be borne by the SUPPLIER.

 

2.3 Invoices

The SUPPLIER shall deliver to the PURCHASER one (01) original and two (02) copies of each respective invoice for each payment milestone as provided for in Clause 2.2 above for the amounts indicated above.

The invoices issued in connection with the payment milestones set forth in Clause 2.2 above shall be issued according to Peruvian tax law.

All copies of the invoices shall be issued to the PURCHASER and sent to the address indicated in Clause 16.1 within five (5) days from the issuance date of the documents.

 

Clause 3. TERMS OF DELIVERY

 

3.1 The parties agree that the STEEL STRUCTURE shall be delivered by the SUPPLIER to the PURCHASER at the PURCHASER’s Plant Site located in Piura, Peru. And all drawings and documentation regarding the scope of supply shall be delivered by the SUPPLIER at PURCHASER’s office at Lima or at the PURCHASER’s Plant Site located in Piura.

 

3.2 Time of delivery: According to the Equipment Supply Contract duly signed between the PURCHASER and ThyssenKrupp Polysius AG and Polysius do Brasil Ltda., and further described in Annex “C” attached hereto.

 

Clause 4. ASSIGNMENT AND SUBCONTRACTING

The SUPPLIER may use parts of the STEEL STRUCTURE supplied by qualified subcontractors having a quality control system and capability satisfactory to the SUPPLIER; however, subcontracting shall not relieve the SUPPLIER from full an entire responsibility for performance of its obligations and its subcontractors in accordance with this Contract.

 

Clause 5. THE PURCHASER’S OBLIGATIONS

The PURCHASER shall be obliged to:

 

5.1 Provide THE SUPPLIER, in due time, with any reasonable information necessary for the supply of the STEEL STRUCTURE. The PURCHASER shall, within ten (10) days from its respective receipt, approve the documents provided by THE SUPPLIER related to the Contract and, in case such documents are deemed not to be in accordance with the SUPPLIER’S obligations, the PURCHASER shall return the documents to the SUPPLIER, clearly stating the reasons for such disagreement, and require its correction within fifteen (15) days from the date of receipt of the documents at the SUPPLIER’S office.


In case the PURCHASER does not disagree with the documents by returning them or does not expressly approve them within the period stated above, all documents sent by THE SUPPLIER shall be deemed approved.

The aforementioned rules shall not apply for amendments, additions, variations or modifications of any term provision of this Contract. In such cases, Clause 12 shall apply.

 

5.2 Pay the price as established in Clause 2.

 

5.3 Coordinate the execution of the supply to be conducted by the SUPPLIER with other supplies and works related to the PROJECT, except the supplies and works performed by Loesche GmbH and affiliates companies.

 

5.4 Notify the SUPPLIER in writing and within 15 days after signing the Contract, of any internal rules and/or regulations as well as any particular proceedings and or structures which the PURCHASER wishes to apply for the execution of the Contract. In the event the SUPPLIER is not being notified in accordance with this Clause 5.4, the SUPPLIER shall have no obligation with regard to the adherence to any such rules, regulations, proceedings and/or structures as mentioned above.

 

5.5 Obtain and maintain, at its own cost, any and all licenses and/or authorizations which may be necessary for the execution of the PROJECT.

 

Clause 6. THE SUPPLIER’S OBLIGATIONS

 

6.1. Supply the STEEL STRUCTURE in accordance with the specifications described in Annexes A and B.

 

6.2 Provide the necessary technical documents according to the requirements of the Contract, including manuals, projects, designs, plans, related to the supply, operation and maintenance of the STEEL STRUCTURE, all of which shall be in the English and/or Spanish language.

 

6.3 Issue the Advance Payment Bond and the Performance Bond as per Clause 2.2.

 

Clause 7. WARRANTIES

 

7.1 Warranty regarding the material

 

  7.1.1 The SUPPLIER hereby warrants that the STEEL STRUCTURE shall be new and free from any defects in workmanship and materials, applying to the standards set forth in this Contract and in the Annexes hereto.

 

  7.1.2 The warranty obligations shall be effective against defects in workmanship and materials or wrong instructions by the SUPPLIER’s Supervisory Personnel for: 12 months after issuance of the Certificate of Technical Acceptance by the PURCHASER from the date of commissioning, however not longer than 48 months after coming into force of the Contract according to Clause 18, whichever occurs first (“WARRANTY PERIOD”). In the event that the delivery will be delayed due to reasons attributable to the SUPPLIER, the warranty latest date shall be prolonged according to the duration of the delay. Notwithstanding the above, the PURCHASER’s rights to claim the Liquidated Damages set forth in Clause 11 shall not be affected hereby.


Within the WARRANTY PERIOD, the SUPPLIER undertakes, for his scope of supply and if requested by the PURCHASER in writing, to replace, modify, and/or repair pieces or components of the STEEL STRUCTURE, which are found defective due to reasons of fabrication or material, at its own option, if possible at the place of operation, provided that those defects of the pieces of the STEEL STRUCTURE or components are not the consequence of natural wear, misuse by the PURCHASER or third persons, or pieces and components which have been operated and/or stored in discordance with the operation and maintenance manuals of the SUPPLIER or the defects have occurred due to any act of negligence by the PURCHASER or by third persons, or due to chemical or electrolytic influences. Wear and tear parts are also not included in the warranties.

The parts, pieces or components of the STEEL STRUCTURE which have been removed and replaced within the WARRANTY PERIOD as stipulated above shall become the property of the SUPPLIER and the warranty period for replaced and repaired parts shall be one (1) year from the date of repair or replacement, however not longer than 48 months after coming into force of the Contract according to Clause 18, whichever occurs first.

No guarantee will be given for consumables or similar short-life items, e.g. oil, grease, wear parts, or similar, nor for damage resulting from faulty or careless handling attributable to the PURCHASER, the processing of unsuitable materials which have not been previously agreed, excessive demands attributable to the PURCHASER.

 

7.2 Liability for Deficiencies in Engineering Documents

 

  7.2.1 For deficiencies in the Engineering documents, the SUPPLIER is liable as follows:

The SUPPLIER is liable for deficiencies in drawings and other records made available to the PURCHASER for their own manufacturing under this Contract, in so far as these deficiencies are due to a severe violation of the accepted rules of technology, by correction or new performance of the incorrect service within a reasonable time.

If such defects, fault error or omission in the engineering documents mentioned above causes direct damage to material or property of the PURCHASER, the SUPPLIER shall reimburse PURCHASER’s additional cost incurred thereby, limited however to an aggregate maximum of 5% of the Contract Price.

Further claims, rights and remedies of the PURCHASER due to deficiencies in drawings, technical data or other engineering documents supplied by the SUPPLIER are excluded. SUPPLIER’s warranty will expire 48 months after the date of the effectiveness of this supply contract.

 

7.3 The PURCHASER shall only have the right to correct a defect by himself or to have it corrected by others and require the SUPPLIER to reimburse him his reasonable expenses for the elimination of the defect in urgent cases where the security of the works is endangered, or to prevent substantial damage, or in the event that SUPPLIER’s, despite PURCHASER’s reminder in writing, has not started to correct the defect within a reasonable time. In such cases the PURCHASER shall inform the SUPPLIER immediately in writing of the problem and the supposed solution.

Out of the direct cost to remedy the defect, the SUPPLIER shall bear only the costs of replacing parts and the costs for his supervisors for erection where they are needed. Any other costs will be to the account of the PURCHASER.


Further rights and remedies of the PURCHASER for the correction of defects, in particular claims for the compensation of damage to parts other than the supplied parts under this Contract shall be excluded. PURCHASER’s rights and remedies in connection with defects and other claims of whatsoever nature shall in all cases cease and expire at the end of the above mentioned liability period.

 

Clause 8. INSPECTION AND TESTS AT SUPPLIER’S PLANT

 

8.1 The PURCHASER shall be entitled during manufacture to witness inspections, examinations and tests of the STEEL STRUCTURE and workmanship at the SUPPLIER’S premises, during normal working hours, as well as to check the progress of manufacture of all main items, parts or components of the STEEL STRUCTURE to be supplied under the Contract. If the mentioned items, parts, components or STEEL STRUCTURE is being manufactured at other premises, the SUPPLIER shall do its best efforts to get the permission for the PURCHASER to witness such inspections, examinations and tests. All travelling charges and other costs directly related to the inspection of the PURCHASER or its inspectors shall be for the PURCHASER’s account. The inspections, examinations and tests shall be executed in accordance with the SUPPLIER’S inspections and test procedures.

 

Clause 9. INTELLECTUAL PROPERTY RIGHTS

 

9.1. The SUPPLIER shall indemnify the PURCHASER against all claims of infringement of any patent, registered design, copyright, trade mark or trade name or other intellectual property right provided that all of the following conditions are satisfied:

 

  (i) The claim or proceedings arise out of the design, construction, manufacture or use of the STEEL STRUCTURE supplied by the SUPPLIER.

 

  (ii) The infringement was not caused by the use of any STEEL STRUCTURE in association or combination with any steel structure not supplied by the SUPPLIER, unless such association or combination was performed by Loesche GmbH or Thyssenkrupp Polysius Ag or Polysius do Brasil Ltda., or disclosed to the SUPPLIER prior to the date of signing of the Contract, or was not reasonably to be inferred from the specification.

 

  (iii) The infringement or allegation of infringement was not a necessary consequence of the SUPPLIER following the design or specific written instructions of the PURCHASER.

 

9.2 If during the execution of this Contract industrial property rights or copyrights might be generated, those belong to the SUPPLIER and the PURCHASER herewith already obliges itself to observe secrecy regarding those rights and to render every assistance necessary for the SUPPLIER to make the arrangements for the registration with the competent organ.

 

9.3 The industrial property of the SUPPLIER such as drawings, patents, copyrights, data, calculations and other elaborations, know-how, etc. put at the disposal of the PURCHASER within the scope of this Contract shall neither be transferred to the PURCHASER nor shall any license for the exploitation of the industrial property as mentioned above be issued.


Clause 10. CONFIDENTIALITY

 

10.1 During the term of this Contract and for a period of five (5) years thereafter, the parties shall keep all information disclosed or otherwise made available pursuant to or in the course of this Contract, whether orally or in any other manner, hereinafter refer to “Confidential Information”, strictly confidential and it shall not disclose any Confidential Information to any third parties without having obtained the other party ’s prior express written permission to do so, unless specifically provided for herein below.

 

10.2 The obligation of confidentiality imposed upon the parties pursuant this Clause 10 shall not apply to any information (i) that was already in the possession of the PURCHASER at the time of disclosure, or is rightfully obtained from a source other than from the SUPPLIER or vice versa; (ii) which at any time becomes available to the public or is or has gone into the public domain through no fault of the PURCHASER or vice versa; (iii) which, after disclosure by the SUPPLIER to the PURCHASER, is at any time lawfully obtained by the PURCHASER from third parties who are under no confidential obligation to the SUPPLIER or vice versa; or (iv) which is required by law to be disclosed by the receiving Party or (v) pursuant to an order of a court or administrative body of competent jurisdiction or government agency, provided that the PURCHASER shall notify the SUPPLIER in the event the PURCHASER elects to legally contest, request confidential treatment, or otherwise avoid such disclosure or vice versa.

 

10.3 Notwithstanding the aforementioned, the SUPPLIER shall be allowed to publish the basic data of the PROJECT in its webpage, brochures and new releases, after written authorization from the PURCHASER. The PURCHASER shall not unreasonably withhold that authorization.

 

Clause 11. RESPONSIBILITY AND LIQUIDATED DAMAGES

 

11.1. The SUPPLIER shall be responsible exclusively in accordance with the terms in this Clause 11.

 

11.2. The parties shall in no event be liable for any indirect, consequential or accidental losses and damages, such as, but not limited to loss of use of the STEEL STRUCTURE, loss of profit or loss of production, no matter if those are based on this contract, tort, violation of accessory obligations or any other reclamations resulting from loss of production and loss of profit.

 

11.3. In case the SUPPLIER does not comply with its delivery dates stipulated in the Contract, they shall be subject to liquidated damages corresponding to 0.5 % of the value of the delayed part of the STEEL STRUCTURE per each full week in delay, counted from the beginning of the non-fulfillment until effective fulfillment of the obligation, up to a maximum amount corresponding to 5% of the section of the STEEL STRUCTURE in delay.

 

11.4. The maximum amount of liquidated damages to be paid under this Contract for the reason of delay shall be limited to 5% of the Contract Price. The PURCHASER shall not be entitled to any liquidated damages for delay in the event the time schedule for the PROJECT is not affected by the SUPPLIER’S delay.

 

11.5. The Parties agree that the reference value for the calculation of all possible indemnifications stipulated in this Contract shall be the Contract Price stipulated in Clause 2 and that the total maximum responsibility of the SUPPLIER towards the PURCHASER for the execution of this Contract, including the obligation to pay liquidated damages for delay as set in Clause 11.3 and Clause 11.4 or for nonperformance of the STEEL STRUCTURE shall be expressly limited to 10 % of the Contract Price.


11.6 The whole liability and responsibility of the parties are agreed upon completely and exclusively in this Contract. Whenever a right and/or remedy is stipulated in the Contract such right and/or remedy shall be the sole right and/or remedy regarding the subject and other rights and/or remedies shall be excluded. Notwithstanding the aforementioned, the SUPPLIER hereby agrees to indemnify, defend and hold harmless the PURCHASER, and any of its subsidiaries, parents or affiliates, and their respective directors, officers, agents, employees and designees, from and against any and all losses, claims, liabilities, injuries, damages and expenses, including, without limitation, attorneys’ fees and court costs, arising out of, or occurring in connection with, (i) the performance or lack of performance by the SUPPLIER of its duties and obligations under or pursuant to this Contract, and/or (ii) any error, omission or act (negligent or otherwise) by the SUPPLIER, or its employees, agents, affiliates or other representatives.

The whole liability and responsibility of the SUPPLIER is agreed upon completely and exclusively in this Contract, and shall be limited to 10% of the Contract Price whether such liability arises from anyone or more claims or actions for breach of contract, tort (including negligence), delayed completion, warranty, indemnity, strict liability or otherwise. Whenever a right and/or remedy is stipulated in the Contract such right and/or remedy shall be the sole right and/or remedy regarding the subject and other rights and/or remedies shall be excluded.

Clause 12. VARIATIONS AND SEVERABILITY

No amendment, addition, variation, or modification of any term or provision of this Contract shall be effective unless both Parties confirm it by a written addendum, duly executed.

If, for any reason whatsoever, any provision of this Contract is held to be invalid, illegal or ineffective, such provision shall be replaced by the Parties by an admissible one, aiming at the same economic and legal results and the validity, legality and effectiveness of the remaining provisions of this Contract shall not thereby be affected or compromised in any manner.

Clause 13. FORCE MAJEURE

 

13.1 Neither Party shall be liable for delay or failure in performing all or any part of this Contract to the extent that its performance has been obstructed due to a Force Majeure Event. Force Majeure as used in this Contract shall mean any event and circumstances beyond the control of the Parties. Such events shall include but shall not be limited to fires, explosions, flood, facts of the elements, acts of public enemies, sabotage, wars, riots, civil or political disturbance, interference by military authorities, prohibitions of exports or imports, epidemics, pandemics.

 

13.2 If an event of Force Majeure occurs the time stipulated for the fulfilment of the obligations of the affected Party shall be extended or suspended for a period equal to the duration of such event or circumstance, without any liability, provided that the Party so affected informs the other promptly in writing or by e-mail or facsimile together with supporting documents confirming the event which causes such Force Majeure. Such notice shall set forth in reasonable details the nature of the Force Majeure and the best estimate by the Party so claiming of the duration thereof. The Party so affected shall not be liable to the other for damages caused by the occurrence of a Force Majeure event. In the event of Force Majeure, the Parties shall immediately consult with each other to find an equitable solution and shall use their best efforts to minimize the consequences of such Force Majeure event.


13.3 As soon as reasonably possible after the end of the Force Majeure event the affected Party shall notify the other Party in writing that the Force Majeure event has ceased and resume the performance of its obligations under this Contract.

 

13.4 In the event that a case of Force Majeure persists for duration of sixty (60) or more days, the Parties shall convene and mutually agree how to proceed.

 

Clause 14. TERMINATION

 

14.1 The Parties may terminate this Contract by a written notice if the other Party becomes bankrupt or insolvent, goes into liquidation, has a receiving or administration order made against it, or carries on business under a receiver

 

14.2 THE SUPPLIER may terminate this Agreement in the event that the PURCHASER unjustifiably delays payments due for more than sixty (60) days and in the event of Clause 18.2;

 

14.3 THE PURCHASER may terminate this Agreement in the event that the SUPPLIER unjustifiably delays the supply of the STEEL STRUCTURE for more than sixty (60) days;

 

14.4 In the event of termination due to any reasons not attributable to the SUPPLIER, the SUPPLIER shall be compensated for all such actual, reasonable and duly evidenced costs which have been occurred until the date of termination, not to exceed the Contract Price, which means for:

 

  (i) All STEEL STRUCTURE ordered and already started manufacturing;

 

  (ii) All cancellation fees incurred by the SUPPLIER, and;

 

  (iii) All engineering documents already delivered to the PURCHASER.

After the SUPPLIER has received the compensation, the Letter of Credit mentioned at Clause 2.2, shall hereafter be voided automatically.

 

14.5 All other rights and/or remedies of the PURCHASER with regard to the termination reason shall be expressly excluded.

Clause 15. INSURANCE

 

15.1. The STEEL STRUCTURE transport insurances shall be provided by the SUPPLIER at his cost and the insurances so provided and maintained by the SUPPLIER shall include a waiver of subrogation, which shall state that the insurer waives all right of subrogation against the PURCHASER, its representatives, employees, agents and affiliates. The SUPPLIER shall indemnify and hold the PURCHASER harmless for all and any claims which may arise against the PURCHASER in this regard.

Clause 16. NOTICES

 

16.1 Any notice or communication to be made hereunder by the SUPPLIER to the PURCHASER shall be addressed as follows:

Mr. Juan Teevin

Piura Cement Plant Project Manager

Cementos Pacasmayo S.A.A.

Calle La Colonia N° 150, Urb. El Vivero

Lima 33, Perú

Email: jteevin@cpsaa.com.pe

Tel: (511) 317-6000, Ext.: 2078


16.2 Any notice or communication to be made hereunder by the PURCHASER to the SUPPLIER shall be addressed as follows:

Rainer Graef

Polysius Ingeniería y Servicios del Perú S.A.

Av. Mariscal Benavides N° 207, Urb. Selva Alegre

Arequipa, Perú

Phone: 0051 54 200116

E-mail: rainer.graef@thyssenkrupp.com

 

16.3 Notices can also be made to any other address or person that the Parties may inform to each other during the term of this Contract.

 

16.4 Any correspondence between the Parties shall be in Spanish or English language.

Clause 17. GOVERNING LAW AND DISPUTE RESOLUTION

 

17.1 This Contract shall be governed by and construed in accordance with the laws of Peru and Rules of the United Nations Convention on Contracts for the International Sale of Goods shall apply supplementary.

 

17.2 Negotiation

If a dispute arises between the Parties relating to or arising out of this Contract, then within thirty (30) days of a Party in writing notifying the other Party of a dispute, senior representatives from each Party must meet and use reasonable endeavours acting in good faith to resolve the dispute.

 

17.3 Mediation

If a dispute arising under this Contract is not resolved within 15 days of notification of the dispute under Clause 17.2, the Parties will, if mutually agreed, submit the matter to mediation before two mediators, each one to be appointed by the CEO’s of both parties. The mediation process will cease if the dispute is not settled within thirty (30) days of the last mediator being appointed, or such longer period as the Parties may agree.

 

17.4 Arbitration

If a dispute arising under this Contract is not resolved under clause 17.3 (or if no agreement is reached to refer the dispute to mediation within thirty (30) days of notification of the dispute under Clause 17.3, either Party may, by written notice to the other, refer the dispute to arbitration in accordance with the Rules for Arbitration of ICC (International Chamber of Commerce, Paris) by three (3) arbitrators appointed in accordance with the said Rules. The arbitration shall be conducted in English and held in the city of Paris, France, unless all parties to the arbitration agree otherwise. The determination of the arbitrators shall be final and binding upon the Parties and the enforcement of the award may be entered in any court having jurisdiction for such enforcement.


Clause 18. COMING INTO FORCE OF THE CONTRACT

 

18.1. This Contract shall come into force upon the signature by all Parties, the receipt of the pre-advance payment as per Clause 2.2 and emission of the Letter of Credit according to Clause 2.2.

 

18.2 In case the Letter of Credit unjustifiably is not issued within 30 days after signing the Contract and/or the advance payments according to Clause 2.2 have not been made by the PURCHASER within 30 days after signing the Contract, the Parties shall meet to negotiate any further procedure.

Clause 19. GENERAL PROVISIONS

 

19.1 No assignment, cession or transfer of any right or obligation arising under this Contract shall be made by one party to a third party, without the previous mutual consent of both parties.

 

19.2 The erection and commissioning of the STEEL STRUCTURE at the PURCHASER Plant Site in Piura, Perú are not included under this Supply Contract.

 

19.3 The Parties agree that the terms of the Equipment Supply Contract duly signed between the PURCHASER and Thyssenkrupp Polysius AG and Polysius do Brasil Ltda. shall apply supplementary.

 

19.4 The Parties agree that this Supply Contract supersedes the Purchase Order N° 009-2012 and that Purchase Order shall be deemed automatically terminated at the date of signature of this Contract.

IN WITNESS WHEREOF , the Parties have caused this Supply Contract to be duly executed by their legal representatives in two (2) counterparts of identical content, in the presence of the undersigned witnesses.

PLACE AND DATE : September 28 th , 2012.

 

Cementos Pacasmayo S.A.A.      Cementos Pacasmayo S.A.A.

/s/    Humberto Nadal del Carpio        

    

/s/    Carlos Julio Pomarino        

Humberto Nadal      Carlos Julio Pomarino

Polysius Ingeniería y Servicios del Perú S.A.

 

 

/s/    Rainer Graef        

 
  Rainer Graef  
   


Annex A:

LIST OF STEEL PARTS FOR FABRICATION

 

ITEM    LIST OF STEEL PARTS    UNIT    TOTAL
WEIGHT
 

1.01

   Calciner parts    kg.      105,338   

1.02

   Steel chutes    kg.      85,528   

1.03

   Fuel silo steel parts    kg.      43,354   

1.04

   Ciclone steel parts    kg.      126,900   

1.05

   Feed bin / hoppers steel parts    kg.      423,130   

1.06

   Dedusting duct    kg.      49,959   

1.07

   Process gas ducts and stacks    kg.      581,810   

1.08

   Kiln hood steel parts    kg.      67,423   

1.09

   Preheater ciclone parts    kg.      218,353   

1.1

   Tertiary air duct    kg.      128,230   

1.11

   Heat exchanger parts    kg.      43,000   

1.12

   Steel apron conveyor and scrapers    kg.      99,800   

1.13

   Belt conveyor parts    kg.      157,800   

1.14

   Bucket elevator parts    kg.      119,400   

1.15

   Dedusting filters parts    kg.      97,200   

1.16

   Steel parts for load cell    kg.      560   

1.17

   Burner steel ducts    kg.      1,080   

1.18

   Two-way distribution chute    kg.      2,350   

1.19

   Fluidor steel parts    kg.      22,600   

1.2

   Cooling tower steel parts    kg.      73,200   

1.21

   Flat slide valve / Rotatory air locker parts    kg.      370   

1.22

   Steel parts for fans    kg.      73,600   

1.23

   Hot gas generator steel parts    kg.      3,700   

1.24

   Kiln steel parts (housing and base plates)    kg.      34,800   

1.25

   Steel parts for loading spout    kg.      1,200   

1.26

   Steel parts for silo sockets valves    kg.      86,200   

1.27

   Parts for process bag filters    kg.      334,000   

1.28

   Compressed air pipes    kg.      24,600   

1.29

   Palletizer / Packing plants parts    kg.      22,000   

1.3

   Polytrack steel parts (housing and pipes)    kg.      55,000   

1.31

   Screw conveyor parts    kg.      5,400   

1.32

   Weighing belt feeder steel parts    kg.      1,100   


Annex B:

PAINTING OF STEEL STRUCTURE

Painting of steel structure

 

1.1 Protection against corrosion

Range of application:

 

   

Basic protection, suitable for protection during transport

 

   

Not suitable as permanent coating

 

   

Not to be used as top coat

Coating:

 

•     Colour shade:

   red brown RAL 8012

•     Application:

   Workshop

•     Surface preparation:

   SSPC-SP5 white metal blast cleaning

•     Binding agent:

   Alkyd resin

•     Pigment:

   Free of zinc chromate

•     Thickness of coating:

   min. 0.075 mm

•     Volume of solids:

   approx. 50 %

•     Density:

   approx. 1.4 kg/dm3

•     Practical tinctorial power:

   approx. 5.0 m2/kg

For hot gas ducts a temperature resistant coating will be used.


Annex C:

Delivery Schedule for the Supply of STEEL STRUCTURE

EXHIBIT 12.1

CERTIFICATION PURSUANT TO

SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Humberto Nadal Del Carpio, certify that:

 

1. I have reviewed this annual report on Form 20-F of Cementos Pacasmayo S.A.A.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;

 

4. The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the company and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(c) Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and

 

5. The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.

Date: April 29, 2013

 

/s/ Humberto Nadal Del Carpio

Humberto Nadal Del Carpio
Chief Executive Officer

EXHIBIT 12.2

CERTIFICATION PURSUANT TO

SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Manuel Ferreyros Peña, certify that:

 

1. I have reviewed this annual report on Form 20-F of Cementos Pacasmayo S.A.A.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;

 

4. The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the company and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(c) Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and

 

5. The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.

Date: April 29, 2013

 

/s/ Manuel Ferreyros Peña

Manuel Ferreyros Peña
Chief Financial Officer

EXHIBIT 13.1

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE U.S. SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report of Cementos Pacasmayo S.A.A. (the “Company”) on Form 20-F for the fiscal year ended December 31, 2012, as filed with the U.S. Securities and Exchange Commission on the date hereof (the “Report”), I, Humberto Nadal Del Carpio, Chief Executive Officer, certify, pursuant to 18 U.S.C. section 1350, as adopted pursuant to section 906 of the U.S. Sarbanes-Oxley Act of 2002, that to the best of my knowledge:

 

  (i) the Report fully complies with the requirements of Section 13(a) or 15(d) of the U.S. Securities Exchange Act of 1934; and

 

  (ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Date: April 29, 2013

 

/s/ Humberto Nadal Del Carpio

Humberto Nadal Del Carpio
Chief Executive Officer

EXHIBIT 13.2

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE U.S. SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report of Cementos Pacasmayo S.A.A. (the “Company”) on Form 20-F for the fiscal year ended December 31, 2012, as filed with the U.S. Securities and Exchange Commission on the date hereof (the “Report”), I, Manuel Ferreyros Peña, Chief Financial Officer, certify, pursuant to 18 U.S.C. section 1350, as adopted pursuant to section 906 of the U.S. Sarbanes-Oxley Act of 2002, that to the best of my knowledge:

 

  (i) the Report fully complies with the requirements of Section 13(a) or 15(d) of the U.S. Securities Exchange Act of 1934; and

 

  (ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Date: April 29, 2013

 

/s/ Manuel Ferreyros Peña

Manuel Ferreyros Peña
Chief Financial Officer