UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended August 31, 2006.
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______________ to _______________.
Commission file Number 0-12515.
BIOMET, INC.
(Exact name of registrant as specified in its charter)
Indiana 35-1418342
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
56 East Bell Drive, Warsaw, Indiana 46582
(Address of principal executive offices)
(574) 267-6639
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes _X_ No ___
Indicate by check mark whether the registrant is an accelerated filer (as
described in Rule 12b-2 of the Exchange Act). Yes _X_ No ___
Indicate by check mark whether the registrant is a shell company (as described
in Rule 12b-2 of the Exchange Act). Yes ___ No _X_
As of August 31, 2006, the registrant had 244,918,680 common shares
outstanding.
BIOMET, INC.
CONTENTS
Pages
Part I. Financial Information
Item 1. Financial Statements:
Consolidated Balance Sheets 1-2
Consolidated Statements of Income 3
Consolidated Statements of Cash Flows 4
Notes to Consolidated Financial Statements 5-7
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 8-9
Item 3. Quantitative and Qualitative Disclosure about
Market Risks 10
Item 4. Controls and Procedures 10
Part II. Other Information
Item 2. Legal Proceddings 11
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 11
Item 4. Submission of Matters to a Vote of Security Holders 12
Item 6. Exhibits 12
Signatures 13
Index to Exhibits 14
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
BIOMET, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
at August 31, 2006 and May 31, 2005
(in thousands)
ASSETS
August 31, May 31,
2006 2006
----------- -------
(Unaudited)
Current assets:
Cash and cash equivalents $ 190,502 $ 160,963
Investments 6,386 6,380
Accounts and notes receivable, net 493,639 507,883
Inventories 559,985 534,515
Deferred income taxes 73,786 73,345
Prepaid expenses and other 36,715 32,342
--------- ---------
Total current assets 1,361,013 1,315,428
--------- ---------
Property, plant and equipment, at cost 682,260 655,432
Less, Accumulated depreciation 318,710 297,800
--------- ---------
Property, plant and equipment, net 363,550 357,632
--------- ---------
Investments 60,688 58,128
Goodwill 442,118 441,397
Intangible assets, net 77,485 79,498
Other assets 16,107 11,839
--------- ---------
Total assets $2,320,961 $2,263,922
========= =========
The accompanying notes are a part of the consolidated financial statements.
BIOMET, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
at August 31, 2006 and May 31, 2005
(in thousands)
LIABILITIES AND SHAREHOLDERS' EQUITY
August 31, May 31,
2006 2006
----------- -------
(Unaudited)
Current liabilities:
Short-term borrowings $ 272,894 $ 276,561
Accounts payable 57,165 62,276
Accrued income taxes 37,754 6,356
Accrued wages and commissions 58,668 63,279
Other accrued expenses 113,856 111,960
--------- ---------
Total current liabilities 540,337 520,432
Long-term liabilities:
Deferred income taxes 27,450 26,991
--------- ---------
Total liabilities 567,787 547,423
--------- ---------
Contingencies
Shareholders' equity:
Common shares 209,740 206,633
Additional paid-in capital 73,130 72,839
Retained earnings 1,445,554 1,419,297
Accumulated other comprehensive income 24,750 17,730
--------- ---------
Total shareholders' equity 1,753,174 1,716,499
--------- ---------
Total liabilities and shareholders' equity $2,320,961 $2,263,922
========= =========
The accompanying notes are a part of the consolidated financial statements.
BIOMET, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
for the three months ended August 31, 2006 and 2005
(Unaudited, in thousands, except per share data)
2006 2005
---- ----
Net sales $ 508,161 $ 484,903
Cost of sales 138,747 134,495
-------- --------
Gross profit 369,414 350,408
Selling, general and
administrative expenses 190,010 178,182
Research and development expense 24,361 20,816
-------- --------
Operating income 155,043 151,410
Other income, net 1,113 558
-------- --------
Income before income taxes 156,156 151,968
Provision for income taxes 53,326 51,669
-------- --------
Net income $ 102,830 $ 100,299
======== ========
Earnings per share:
Basic $.42 $.40
==== ====
Diluted $.42 $.40
==== ====
Shares used in the computation
of earnings per share:
Basic 244,881 249,582
======= =======
Diluted 244,881 250,656
======= =======
Cash dividends per common share $.30 $.25
==== ====
The accompanying notes are a part of the consolidated financial statements.
BIOMET, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
for the three months ended August 31, 2006 and 2005
(Unaudited, in thousands)
2006 2005
---- ----
Cash flows from (used in) operating activities:
Net income $102,830 $100,299
Adjustments to reconcile net income to
net cash from operating activities:
Depreciation 20,311 15,277
Amortization 2,237 2,236
Share-based payment expense 4,226 --
Loss on sale of investments, net (375) (47)
Deferred income taxes (1,039) (1,425)
Changes in current assets and liabilities:
Accounts and notes receivable, net 13,995 15,276
Inventories (20,593) (15,201)
Prepaid expenses (3,613) (4,547)
Accounts payable (3,830) 3,034
Accrued income taxes 37,396 23,633
Other (14,399) (6,705)
------- -------
Net cash from operating activities 137,146 131,830
------- -------
Cash flows from (used in) investing activities:
Proceeds from sales and maturities of investments 2,627 11,854
Purchases of investments (3,718) (8,454)
Capital expenditures (24,170) (25,984)
Other (2,445) 247
------- ------
Net cash used in investing activities (27,706) (22,337)
------- ------
Cash flows from (used in) financing activities:
Increase (decrease) in short-term borrowings, net (1,605) 6,823
Issuance of common shares 3,284 2,798
Cash dividends (73,526) (62,473)
Purchase of common shares (7,268) (35,447)
------- ------
Net cash used in financing activities (79,115) (88,299)
------- ------
Effect of exchange rate changes on cash (786) (1,507)
------- ------
Increase in cash and cash equivalents 29,539 19,687
Cash and cash equivalents, beginning of year 160,963 104,706
------- -------
Cash and cash equivalents, end of period $190,502 $124,393
======= =======
The accompanying notes are a part of the consolidated financial statements.
BIOMET, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1: BASIS OF PRESENTATION.
The accompanying consolidated financial statements include the accounts of
Biomet, Inc. and its subsidiaries (individually and collectively referred to as
the "Company"). The unaudited consolidated financial statements have been
prepared in accordance with accounting principles generally accepted in the
United States for interim financial information and with the instructions to
Form 10-Q and Rule 10-01 of Regulation S-X. Accordingly, they do not include
all of the information and notes required by accounting principles generally
accepted in the United States for complete financial statements. In the opinion
of management, all adjustments (consisting of normal recurring accruals)
considered necessary for a fair presentation have been included. Operating
results for the three-month period ended August 31, 2006 are not necessarily
indicative of the results that may be expected for the fiscal year ending
May 31, 2007. For further information, refer to the consolidated financial
statements and notes thereto included in the Company's Annual Report on Form
10-K for the fiscal year ended May 31, 2006.
The accompanying consolidated balance sheet at May 31, 2006, has been derived
from the audited Consolidated Financial Statements at that date, but does not
include all disclosures required by accounting principles generally accepted
in the United States.
The Company operates in one business segment, musculoskeletal products, which
includes the designing, manufacturing and marketing of reconstructive products,
fixation devices, spinal products and other products. Other products consist
primarily of softgoods and bracing products, arthroscopy products, general
instruments and operating room supplies. The Company manages its business
segment primarily on a geographic basis. These geographic markets are
comprised of the United States, Europe and the Rest of World. Major markets
included in the Rest of World geographic market are Canada, South America,
Mexico, Japan and the Pacific Rim.
Net sales of musculoskeletal products by product category are as follows for the
three months ended August 31, 2006 and 2005:
2006 2005
---- ----
(in thousands)
Reconstructive Products $351,737 $323,815
Fixation Devices 60,873 64,179
Spinal Products 51,933 55,326
Other Products 43,618 41,583
------- -------
Total $508,161 $484,903
======= =======
The Company adopted SFAS No. 123(R), "Share-Based Payment", ("SFAS 123R") on
June 1, 2006 using the modified prospective method. SFAS 123R requires all
share-based payments to employees, including stock options, to be expensed
based on their fair value over the required award service period. The Company's
share-based payments primarily consist of stock options. The Company had
previously followed APB No.25 "Accounting for Stock Issued to Employees," in
accounting for its stock options and accordingly, no compensation expense had
been previously recognized.
Under the modified prospective method, the provisions of SFAS 123R apply to all
share-based payments granted or modified after the date of adoption. Prior
period results have not been restated. For share-based payments granted prior
to the date of adoption, the unrecognized expense related to the unvested
portion at the date of adoption will be recognized in net income under the
grant date fair value provisions used for our pro forma disclosures under
SFAS 123. The Company uses the Black-Scholes option-pricing model to determine
the fair value of our stock options. Compensation expense recognized in the
current period was $4,226,000 offset by $241,000 of tax benefit, which is
$0.02 per share. The amount of pre-tax compensation cost related to nonvested
stock options not yet recognized was $87.2 million at August 31, 2006, which
is expected to be amortized through 2012.
If compensation expense for the Company's employee stock options had been
determined based on the fair value method of accounting, pro forma net income
and diluted earnings per share for the three months ended August 31, 2005 would
have been as follows:
Net income as reported (in thousands) $100,299
Deduct: Total stock-based employee
compensation expense determined
under the fair value method for
all awards net of related tax
effects (in thousands) 2,149
-------
Pro forma net income (in thousands) $ 98,150
=======
Earning per share:
Basic, as reported $0.40
====
Basic, pro forma $0.39
====
Diluted, as reported $0.40
====
Diluted, pro forma $0.39
====
NOTE 2: COMPREHENSIVE INCOME.
Other comprehensive income (loss) includes foreign currency translation
adjustments and unrealized appreciation of available-for-sale securities,
net of taxes. Other comprehensive income (loss) for the three months ended
August 31, 2006 and 2005 was $7,020,000 and $(25,304,000), respectively. Total
comprehensive income combines reported net income and other comprehensive
income (loss). Total comprehensive income for the three months ended August
31, 2006 and 2005 was $109,850,000 and $74,995,000, respectively.
NOTE 3: INVENTORIES.
Inventories at August 31, 2006 and May 31, 2006 are as follows:
August 31, May 31,
2006 2006
------------ -------
(in thousands)
Raw materials $ 72,248 $ 71,126
Work-in-process 57,169 48,416
Finished goods 258,002 225,997
Consigned distributor 172,566 188,976
------- -------
$559,985 $534,515
======= =======
NOTE 4: COMMON SHARES.
During the three months ended August 31, 2006, the Company issued 152,767
Common Shares upon the exercise of outstanding stock options for proceeds
aggregating $3,284,000. Purchases of Common Shares pursuant to the Common
Share Repurchase Programs aggregated 210,000 shares for $7,268,000 during
the three months ended August 31, 2006.
NOTE 5: EARNINGS PER SHARE.
Earnings per common share amounts ("basic EPS") are computed by dividing net
income by the weighted average number of common shares outstanding and excludes
any potential dilution. Earnings per common share amounts assuming dilution
("diluted EPS") are computed by reflecting potential dilution from the
exercise of stock options.
NOTE 6: INCOME TAXES.
The difference between the reported provision for income taxes and a provision
computed by applying the federal statutory rate to pre-tax accounting income is
primarily attributable to state income taxes, tax benefits relating to
operations in Puerto Rico, tax-exempt income, tax credits and lack of a tax
benefit associated with Incentive Stock Options under Share-based Payment
expense.
NOTE 7: CONTINGENCIES.
On September 21, 2006, two complaints were filed by two different individual
stockholders, purportedly as derivative actions on behalf of Biomet, Inc.
against certain of Biomet's current and former officers and directors. The
complaints, captioned Karen Long, Derivatively On Behalf of Biomet, Inc. vs.
Daniel P. Hann, et. al. and Clifford M. Thorson, Derivatively On Behalf of
Biomet, Inc. vs. Daniel P. Hann, et. al., allege violations of state and
federal law relating to the issuance of certain stock option grants by the
Company dating back to approximately 1996. Both complaints seek unspecified
money damages as well as other equitable and injunctive relief. These cases
are pending before Kosciusko Superior Court I in Kosciusko County, State of
Indiana. Biomet intends to take all appropriate actions to defend these suits.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
FINANCIAL CONDITION AS OF AUGUST 31, 2006
The Company's cash and investments increased $31,805,000 to $257,576,000 at
August 31, 2006. This increase resulted from positive cash flow from
operations offset by the $73,526,000 dividend paid during this quarter
and the $7,268,000 used to purchase shares during this quarter pursuant
to the Company's share repurchase programs.
Cash flows provided by operating activities were $137,146,000 for the first
three months of fiscal 2007 compared to $131,830,000 in 2006. The primary
sources of fiscal year 2007 cash flows from operating activities were net
income, depreciation, a decrease in accounts receivable and an increase in
accrued income taxes. The primary use was an increase in inventories.
Accounts receivable normally decreases in Europe during the summer months
as sales decrease slightly due to the vacation period, but cash receipts
continue. Accrued income taxes increased during the quarter due to the
first quarter tax estimates being due after the quarter end. Inventories
increased primarily in three areas: Europe, where a normal inventory build
is planned during the summer months; 3i, where the Company is working to
resolve a back-order situation; and Japan where the Company is launching
the Bi-metric XR and the Vanguard RP. Accounts and notes receivable and
inventory balances increased during the three month period by $.25 million
and $5.3 million, respectively, due to currency exchange rates.
Cash flows used in investing activities were $27,706,000 for the first three
months of fiscal 2007 compared to $22,337,000 in 2006. The primary use of
cash flows from investing activities in fiscal 2007 was capital expenditures.
The Company continues to upgrade its instruments used in various international
markets and to support the new implant systems being launched.
Cash flows used in financing activities were $79,115,000 for the first three
months of fiscal 2007 compared to $88,229,000 in 2006. The primary uses were
the cash dividend paid and the share repurchase programs. In July 2006, the
Company's Board of Directors declared a cash dividend of thirty cents ($0.30)
per share payable to shareholders of record at the close of business on
July 15, 2006. Over the last fifteen quarters, the Company has used
$1,064,000,000 to purchase its common stock.
Currently available funds, together with anticipated cash flows generated from
future operations are believed to be adequate to cover the Company's
anticipated cash requirements, including capital expenditures, research and
development costs and share repurchases.
RESULTS OF OPERATIONS FOR THE THREE MONTHS ENDED AUGUST 31, 2006
AS COMPARED TO THE THREE MONTHS ENDED AUGUST 31, 2005
Net sales increased 5% to $508,161,000 for the first quarter ended August 31,
2006, from $484,903,000 for the same period last year. Excluding the
positive impact of foreign currency, net sales growth for the first quarter
was 4%. The Company's U.S.-based revenue increased 3% to $325,947,000 during
the first quarter of fiscal 2007, while foreign sales increased 9% to
$182,214,000. Excluding the positive foreign exchange adjustment, foreign
revenue increased 7%. The Company's worldwide sales of reconstructive
products during the first quarter of fiscal 2007 were $351,737,000,
representing a 9% increase compared to the first quarter of last year.
This increase came through balanced growth in all of the reconstructive
product categories.
Sales of fixation products were $60,873,000 for the first quarter of fiscal
2007, representing a 5% decrease as compared to the same period in fiscal
2006. Sales of spinal products were $51,933,000 for the first quarter of
fiscal 2007, representing a 6% decrease as compared to the same period in
fiscal 2006. Biomet Trauma and Biomet Spine, formerly EBI, ("BTBS") has
continued to underperform management's expectations. During the quarter,
the Company has continued to make numerous changes at BTBS, including the
appointment of Chuck Niemier, former COO International Operations, as
president and the appointment of a new vice president of finance and vice
president of sales. The Company is also making significant progress with
the implementation of a new computer system, sales support system, the
in-sourcing of the manufacture of spinal hardware products and expanding
the research and development team. We believe that the new management
team and infrastructure changes at Biomet Trauma and Biomet Spine will
allow the Company to provide greater focus on the spine and trauma
markets and to our customers.
The Company's sales of other products totaled $43,618,000, representing
a 5% increase over the first quarter of fiscal year 2006.
Cost of sales decreased as a percentage of net sales to 27.3%, for the
first quarter of fiscal 2007 from 27.7% during the same period last year.
This decrease was primarily a result of higher growth rates in
reconstructive products where gross margins are higher. Selling, general
and administrative expenses, as a percentage of net sales, increased to
37.4% compared to 36.7% for the first quarter last year. This increase
is a result of the adoption of SFAS 123R Share-Based payment, which
increased selling, general and administrative expenses by .7% and research
and development expense by .2%. Research and development expenditures
increased 17% during the first quarter to $24,361,000 reflecting the
Company's continued emphasis on new product introductions and the
aforementioned Share-Based payment expense. Operating income increased
2% from $151,410,000 for the first quarter of fiscal 2006, to $155,043,000
for the first quarter of fiscal 2007. After adjusting for the adoption of
SFAS 123R, operating income increased 5%. Other income increased from
$558,000 last year to $1,113,000 this year. Other income has been
positively impacted by an increase in cash available for investments and
an increase in interest rates. The effective income tax rate increased
to 34.1% for the first quarter of fiscal year 2007 from 34.0% last year
primarily as a result of the lack of a tax benefit associated with
SFAS 123R related to Incentive Stock Options.
These factors resulted in a 3% increase in net income to $102,830,000 for
the first quarter of fiscal 2007 as compared to $100,299,000 for the same
period in fiscal 2006, while basic and diluted earnings per share
increased 5%, from $0.40 to $0.42 for the periods presented. After
adjusting for the adoption of SFAS 123R, net income increased by 6%,
while basic and diluted earnings per share increased 10% for the periods
presented.
Item 3. Quantitative and Qualitative Disclosures about Market Risks.
There have been no material changes from the information provided in the
Company's Annual Report on Form 10-K for the year ended May 31, 2006.
Item 4. Controls and Procedures.
(a) Evaluation of Disclosure Controls and Procedures. As of the end of
the period covered by this report, the Company carried out an evaluation,
under the supervision and with the participation of its management,
including the Company's Chief Executive Officer and Chief Financial Officer,
of the effectiveness of the Company's disclosure controls and procedures
(as defined in Rules 13a-15(e) and 15d-15(e) of the Securities Exchange
Act of 1934). Based on this evaluation, the Company's Chief Executive
Officer and Chief Financial Officer have concluded that the Company's
disclosure controls and procedures are effective in timely notification
to them of information the Company is required to disclose in its periodic
SEC filings and in ensuring that this information is recorded, processed
summarized and reported within the time periods specified in the SEC's
rules and regulations.
(b) Changes in Internal Control. During the first quarter of fiscal 2007,
there were no changes in internal control over financial reporting that
have materially affected, or are reasonably likely to materially affect,
our internal control over financial reporting.
PART II. OTHER INFORMATION
Item 1: Legal Proceedings.
On September 21, 2006, two complaints were filed by two different
individual stockholders, purportedly as derivative actions on behalf of
Biomet, Inc. against certain of Biomet's current and former officers
and directors. The complaints, captioned Karen Long, Derivatively On
Behalf of Biomet, Inc. vs. Daniel P. Hann, et. al. and Clifford M.
Thorson, Derivatively On Behalf of Biomet, Inc. vs. Daniel P. Hann, et.
al., allege violations of state and federal law relating to the
issuance of certain stock option grants by the Company dating back to
approximately 1996. Both complaints seek unspecified money damages as
well as other equitable and injunctive relief. These cases are pending
before Kosciusko Superior Court I in Kosciusko County, State of Indiana.
Biomet intends to take all appropriate actions to defend these suits.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.
(c) Stock Repurchases
During the quarter ended August 31, 2006, the Company had two publicly-
announced share repurchase programs outstanding. The first, announced
June 30, 2005, approved the purchase of 2,500,000 shares to be
automatically purchased daily in equal increments over a twelve-month
period. The remaining shares available under this plan have been
purchased during the quarter. The second, announced December 21, 2005,
approved the purchase of shares up to $100 million in open market or
privately negotiated transactions expiring December 20, 2006. The shares
repurchased in the first quarter of fiscal 2007, the average price paid,
and dollar value remaining available for purchase are as follows:
Total Number Maximum Number of
of Shares Shares (or Approximate
Total Number Average Purchased as Dollar Value) that May
of shares Price Paid Part of Publicly Yet be Purchased
Period Purchased Per Share Announced Plans Under the Plans
------ ------------ ---------- ---------------- ----------------------
June 1-30 210,000 $34.61 210,000 $45,861,743
July 1-31 None -- None $45,861,743
August 1-31 None -- None $45,861,743
--------- ----- --------- --------------------
Total 210,000 $34.61 210,000 $45,861,743
Item 4. Submission of Matters to a Vote of Security Holders.
The Annual Meeting of Shareholders of the Company was held on
September 20, 2006. At the Annual Meeting:
1. The following persons were elected as Directors of the Company
for a three-year term expiring in 2009.
Name Votes For Votes Withheld
Jerry L. Ferguson 204,185,902 14,804,822
Thomas F. Kearns, Jr. 195,546,688 23,444,036
Daniel P. Hann 210,559,827 8,430,897
The following directors will continue in office until their term expires
at the 2007 Annual meeting of shareholders: M. Ray Harroff; Jerry L.
Miller; Charles E. Niemier; and L. Gene Tanner.
The following directors will continue in office until their term expires
at the 2008 Annual Meeting of shareholders: C. Scott Harrison, M.D.;
Sandra A. Lamb; Niles L. Noblitt; Kenneth V. Miller; and Marilyn Tucker
Quayle.
2. The Biomet, Inc. 2006 Equity Incentive Plan was approved by the
shareholders as follows: Votes For - 155,003,361; Votes Against - 15,109,872;
and Abstentions and Broker Non-Votes - 2,360,011.
3. The appointment of Ernst & Young LLP as independent accountants for
the Company for the fiscal year ending May 31, 2006 was ratified by the
shareholders, as follows: Votes For - 215,878,971; Votes Against -
1,439,805; and Abstentions and Broker Non-Votes - 1,671,946.
Item 6. Exhibits.
(a) Exhibits. See Index to Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
BIOMET, INC.
------------
DATE: 10/9/2006 BY: /s/ Gregory D. Hartman
---------- -----------------------
Gregory D. Hartman
Senior Vice President - Finance
(Principal Financial Officer)
(Signing on behalf of the registrant
and as principal financial officer)
BIOMET, INC.
FORM 10-Q
INDEX TO EXHIBITS
Exhibits Description
31.1 Certification of Chief Exectuive Officer pursuant
to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2 Certification of Chief Financial Officer pursuant
to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1 Written Statement of Chief Executive Officer and
Chief Financial Officer Pursuant to Sections 906 of
the Sarbanes-Oxley Act of 2002.