8-K/A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K/A

AMENDMENT NO. 1

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported)

November 30, 2012

HECKMANN CORPORATION

(Exact name of registrant as specified in its charter)

Delaware	001-33816	26-0287117
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

14646 N. Kierland Blvd., Suite 260, Scottsdale, Arizona 85254

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code

(602) 903-7802

300 Cherrington Parkway, Suite 200, Coraopolis, Pennsylvania 15108

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CRF 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

EXPLANATORY NOTE

Pursuant to the requirements of the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”), Heckmann Corporation, a Delaware corporation (the “Company”), hereby amends its Current Report on Form 8-K filed with the United States Securities and Exchange Commission (the “SEC”) on December 6, 2012 (the “12/6/12 Form 8-K”), for the purpose of filing the pro forma financial information required by Item 9.01 of Form 8-K with respect to the merger of Badlands Power Fuels, LLC, a Delaware limited liability company, formerly Badlands Energy, LLC, a North Dakota limited liability company (“Power Fuels”), with and into a wholly-owned subsidiary of the Company (the “Power Fuels Merger”), in accordance with Rule 3-14 and Article 11 of Regulation S-X.

In addition, included as Exhibit 99.2 hereto are certain updates and modifications to the risk factors contained in Item 1A of the Company’s Annual Report on Form 10-K for the year ended December 31, 2011 and Exhibit 99.3 of the Company’s Current Report on Form 8-K filed with the SEC on April 10, 2012. The updated risk factors contained in Exhibit 99.2 hereto (the “Risk Factors”) should be carefully considered along with any other risk factors related to the Company’s business identified in the Company’s other periodic and current reports filed with the SEC. The occurrence of any one or more of these risks could materially and adversely affect the Company’s business, financial condition and results of operations.

Section 8 – Other Events

Item 8.01 Other Events

The Risk Factors are filed herewith as Exhibit 99.2.

Forward Looking Statements

The information contained in this Current Report on Form 8-K and the exhibits attached hereto contain “forward-looking statements” within the meaning of the safe harbor provisions of the United States Private Securities Litigation Reform Act of 1995, as amended, including statements related to the Power Fuels Merger, which are based on current expectations, forecasts and assumptions that involve risks and uncertainties that could cause actual results to differ materially. These risks and uncertainties are discussed in the Company’s filings with the SEC, including its Annual Report on Form 10-K for the year ended December 31, 2011, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. Do not rely on any forward-looking statement, as the Company cannot predict or control many of the factors that ultimately may affect its ability to achieve the results estimated. The Company makes no promise to update any forward-looking statement, whether as a result of changes in underlying factors, new information, future events or otherwise.

Section 9 – Financial Statements and Exhibits

In accordance with Article 11 of Regulation S-X, the Company hereby files the following pro forma financial information.

Item 9.01 Financial Statements and Exhibits

(b) Pro Forma Financial Information

As discussed in the 12/6/12 Form 8-K, the Company completed the Power Fuels Merger on November 30, 2012. The required unaudited pro forma financial information as of and for the year ended December 31, 2011, and the nine months ended September 30, 2012, is attached hereto as Exhibit 99.1 and incorporated by reference herein.

(d) Exhibits

Number	Description of Exhibit
99.1	Unaudited Pro Forma Condensed Combined Financial Information as of and for the year ended December 31, 2011, and the nine months ended September 30, 2012
99.2	Risk Factors

SIGNATURE

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 hereunto duly authorized.

	HECKMANN CORPORATION
Date: February 8, 2013	By:	/s/ Damian C. Georgino
	Damian C. Georgino
	Executive Vice President, Corporate Development and Chief Legal Officer

EXHIBIT INDEX

Number	Description of Exhibit
99.1	Unaudited Pro Forma Condensed Combined Financial Information as of and for the year ended December 31, 2011, and the nine months ended September 30, 2012
99.2	Risk Factors

EX-99.1

Exhibit 99.1

UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION OF HECKMANN CORPORATION

The accompanying unaudited pro forma combined financial statements present the pro forma combined financial position and results of operations of the combined company based upon the historical financial statements of Heckmann Corporation (“Heckmann”) and Badlands Power Fuels, LLC (“Power Fuels”) after giving effect to the merger and adjustments described in the accompanying footnotes, and are intended to reflect the impact of the Power Fuels merger on Heckmann. The accompanying unaudited pro forma combined financial statements are based upon historical financial statements and have been developed from (i) the audited consolidated financial statements of Heckmann contained in its Annual Report on Form 10-K for the year ended December 31, 2011, and the unaudited consolidated financial statements of Heckmann contained in its Quarterly Report on Form 10-Q for the nine months ended September 30, 2012, and (ii) the audited consolidated financial statements of Power Fuels for the year ended December 31, 2011, and the unaudited consolidated financial statements of Power Fuels for the nine months ended September 30, 2012, both which are included in Exhibit 99.1 to Heckmann’s Current Report on Form 8-K filed with the United States Securities and Exchange Commission (the “SEC”) on December 6, 2012. The unaudited pro forma combined financial statements are prepared with Heckmann treated as the acquiror for purposes of the presentation and as if the merger with Power Fuels had been consummated on September 30, 2012 for purposes of preparing the unaudited combined balance sheet as of September 30, 2012, and on January 1, 2011 for purposes of preparing the unaudited combined statements of operations for the twelve months ended December 31, 2011 and the nine months ended September 30, 2012. The unaudited pro forma combined statement of operations for the year ended December 31, 2011, includes the pro forma results of TFI Holdings, Inc. and its subsidiary, Thermo Fluids Inc. (together, “TFI”), which were acquired by Heckmann on April 10, 2012, as reflected in the information contained in Heckmann’s Current Report on Form 8-K/A filed with the SEC on June 20, 2012 (the “6/20/12 Form 8-K/A”). In addition, for purposes of the unaudited combined statements of operations for the nine months ended September 30, 2012, the pro forma results for the nine months ended September 30, 2012 include the pro forma results of TFI for the three months ended March 31, 2012 as reflected in the information contained in the 6/20/12 Form 8-K/A.

For purposes of the unaudited pro forma combined financial statements, the merger consideration with respect to the Power Fuels transaction is assumed to be the issuance of 95.0 million shares of Heckmann common stock and the payment of $129.4 million in cash. In addition, we refinanced Power Fuels’ outstanding debt (the “Refinancing”) in the amount of $145.6 million. The Refinancing and the payment of the cash consideration were consummated with borrowings under Heckmann’s senior secured revolving credit facility, which was amended concurrently with the consummation of the Power Fuels merger to, among other things, increase the credit facility to $325.0 million, and the net proceeds of the issuance of $150.0 million of debt securities (which debt securities constitute an additional issuance of Heckmann’s currently outstanding $250.0 million 9.875% senior notes due 2018 issued in connection with the consummation of the TFI acquisition).

For purposes of these unaudited pro forma combined financial statements, the price of Heckmann common stock issued as part of the Power Fuels merger consideration was $3.91 per share, and the interest rate on credit facility borrowings was approximately 4.0%. The $150.0 million of debt securities issued bears interest at the rate of 9.875%. Heckmann plans to obtain third-party valuations of certain of Power Fuels’ assets, including property and equipment and intangible assets. Given the size and timing of the Power Fuels merger, the amount of certain assets and liabilities presented are based on preliminary valuations and are subject to adjustment as additional information is obtained and the third-party valuations are reviewed and finalized. The primary areas of the purchase price allocation that are considered preliminary relate to the fair values of property and equipment, intangibles, and acquisition-related liabilities, goodwill and the related tax impact of adjustments to these areas of the purchase price allocation. However, as indicated in note (a) to the unaudited pro forma combined financial statements, Heckmann has made certain adjustments to the September 30, 2012 historical book values of the assets and liabilities of Power Fuels to reflect certain preliminary estimates of the fair values necessary to prepare the unaudited pro forma combined financial statements. Any excess purchase price over the historical net assets of Power Fuels, as adjusted to reflect estimated fair values, has been recorded as goodwill. Actual results may differ from these unaudited pro forma combined financial statements once Heckmann has completed the valuation studies necessary to finalize the required purchase price allocations. There can be no assurance that such finalization will not result in material changes.

The accompanying unaudited pro forma combined financial statements are provided for illustrative purposes only and do not purport to represent what the actual consolidated results of operations or the consolidated financial position of Heckmann would have been had the Power Fuels merger and/or the TFI acquisition occurred on the dates assumed, nor are they necessarily indicative of future consolidated results of operations or consolidated financial position. The unaudited pro forma combined financial statements do not include the realization of potential cost savings from operating efficiencies or restructuring costs which may result from the Power Fuels merger. The unaudited pro forma combined financial statements should be read in conjunction with the separate historical consolidated financial statements and accompanying notes of Heckmann and Power Fuels, as well as the separate historical consolidated financial statements and accompanying notes of TFI which are included as Exhibit 99.2 to Heckmann’s Current Report on Form 8-K filed with the SEC on March 22, 2012 (for the year ended December 31, 2011) and Exhibit 99.2 to the 6/20/12 Form 8-K/A (for the three-month period ended March 31, 2012).

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UNAUDITED PRO FORMA COMBINED BALANCE SHEET

AS OF SEPTEMBER 30, 2012

(In thousands, except share and per share amounts)

	Heckmann			Power Fuels		Pro forma adjustments			Pro forma combined
ASSETS
Current Assets
Cash and cash equivalents	$	11,677		$	2,352	$	(872	)(b1)	$	13,157
Accounts receivable, net		82,802			89,391		(25,550	)(b2)		146,643
Inventories, net		3,198			4,255		—			7,453
Prepaid expenses and other receivables		5,958			1,423		(471	)(b3)		6,910
Other current assets		3,566			—		—			3,566
Related party receivable		—			—		—			—
Total current assets		107,201			97,421		(26,893	)		177,729
Property, plant and equipment, net		332,769			275,727		(6,065	)(b3)		602,431
Equity investments		7,682			356		—			8,038
Intangible assets, net		72,941			—		150,000	(b4)		222,941
Goodwill		295,634			—		313,518	(b5)		609,152
Other		10,596			40,572		(23,129	)(b6)		28,039
TOTAL ASSETS	$	826,823		$	414,076	$	407,431		$	1,648,330
LIABILITIES AND EQUITY
Current Liabilities
Accounts payable	$	28,939		$	8,217	$	(76	)(b7)	$	37,080
Accrued expenses		16,764			17,191		(1,565	)(b7)		32,390
Accrued interest		11,836			41		824	(b8)		12,701
Current portion of contingent consideration		7,571			—		—			7,571
Current portion of long-term debt		4,647			56,305		(56,305	)(b8)		4,647
Total current liabilities		69,757			81,754		(57,122	)		94,389
Long-term debt, less current portion		264,869			108,082		187,885	(b8)		560,836
Deferred income taxes		7,424			—		109,317	(b9)		116,741
Long-term contingent consideration		4,645			—		—			4,645
Other long-term liabilities		10,042			634		—			10,676
Commitments and contingencies
Equity
Preferred stock		—			—		—			—
Common stock		170			—		95	(b10)		265
Additional paid-in capital		945,593			—		371,355	(b10)		1,316,948
Members equity		—			223,606		(223,606	)(b11)		—
Purchased warrants		(6,844	)		—		—			(6,844	)
Treasury stock		(19,503	)		—		—			(19,503	)
Accumulated deficit		(449,330	)		—		19,507	(b12)		(429,823	)
Total equity of Heckmann Corporation		470,086			223,606		167,351			861,043
TOTAL LIABILITIES AND EQUITY	$	826,823		$	414,076	$	407,431		$	1,648,330

See Notes to Unaudited Pro Forma Combined Financial Statements

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UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS

FOR THE YEAR ENDED DECEMBER 31, 2011

(In thousands, except share and per share amounts)

	Heckmann			Thermo			Pro forma adjustments			Pro forma combined HEK/TFI			Power Fuels			Further adjustments			As further adjusted
Revenue	$	156,837		$	113,798		$	—		$	270,635		$	277,039		$	(1,592	) (c1)	$	546,082
Cost of goods sold		123,509			72,127			—			195,636			33,920			143,475	(c2)		373,031
Gross profits		33,328			41,671			—			74,999			243,119			(145,067	)		173,051
Operating expenses:
General administrative		36,651			19,254			15			55,920			154,049			(133,144	) (c3)		76,825
Pipeline start-up and commissioning		2,089			—			—			2,089			—			—			2,089
Total operating expenses		38,740			19,254			15			58,009			154,049			(133,144	)		78,914
Income (loss) from operations		(5,412	)		22,417			(15	)		16,990			89,070			(11,923	)		94,137
Interest income (expense), net		(4,243	)		(8,691	)		(15,793	)		(28,727	)		(5,194	)		(15,454	) (c4)		(49,375	)
Loss from equity method investment		(462	)		—			—			(462	)		—			—			(462	)
Other, net		6,232			—			74			6,306			—			2,579	(c5)		8,885
Income (loss) from continuing operations before income taxes		(3,885	)		13,726			(15,734	)		(5,893	)		83,876			(24,798	)		53,185
Income tax benefit (expense)		3,777			(5,390	)		29,170			27,557			—			(2,046	) (c6)		25,511
Net income (loss) from continuing operations		(108	)		8,336			13,436			21,664			83,876			(26,844	)		78,696
Loss from discontinued operations, net of income taxes		(22,898	)		—			—			(22,898	)		—			—			(22,898	)
Net income (loss) attributable to common stockholders	$	(23,006	)	$	8,336		$	13,436		$	(1,234	)	$	83,876		$	(26,844	)	$	55,798
Weighted average shares o/s:
Basic		114,574,730									132,774,730									217,774,730
Diluted		114,574,730									139,663,329									234,663,329
Earnings per share:
Basic			*							$	0.16								$	0.36
Diluted			*							$	0.16								$	0.33

* less than $0.01

See Notes to Unaudited Pro Forma Combined Financial Statements

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UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS

FOR THE NINE MONTH PERIOD ENDED SEPTEMBER 30, 2012

(In thousands, except share and per share amounts)

	Heckmann			March 31, 2012 Thermo			Pro  forma adjustments			Pro forma combined HEK/TFI			Power Fuels			Further          adjustments			As further adjusted
Revenue	$	238,778		$	27,479			—		$	266,257		$	301,217		$	(2,633	) (d1)	$	564,841
Costs of goods sold		200,316			19,182			—			219,498			41,602			154,822	(d2)		415,922
Gross profit		38,462			8,297			—			46,759			259,615			(157,455	)		148,919
Total operating expenses		39,043			4,817			(110	)		43,750			167,069			(151,224	) (d3)		59,595
Income (loss) from operations		(581	)		3,480			110			3,009			92,546			(6,231	)		89,324
Interest income (expense), net		(15,930	)		(1,141	)		(3,622	)		(20,693	)		(6,005	)		(9,481	) (d4)		(36,179	)
Other, net		(5,203	)		—			25			(5,178	)		—			(1,934	) (d5)		(7,112	)
Income (loss) before income taxes		(21,714	)		2,339			(3,487	)		(22,862	)		86,541			(17,646	)		46,033
Income tax benefit (expense)		19,249			(912	)		1,412			19,749			—			(38,156	) (d6)		(18,407	)
Net income (loss) attributable to common stockholders	$	(2,465	)	$	1,427		$	(2,075	)	$	(3,113	)	$	86,541		$	(55,802	)	$	27,626
Weighted average shares o/s:
Basic		139,312,830									139,312,830									224,312,830
Diluted		139,312,830									139,312,830									234,312,830
Earnings per share:
Basic	$	(0.02	)							$	(0.02	)							$	0.12
Diluted	$	(0.02	)							$	(0.02	)							$	0.12

See Notes to Unaudited Pro Forma Combined Financial Statements

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NOTES TO UNAUDITED PRO FORMA COMBINED

FINANCIAL STATEMENTS

(a) Preliminary Purchase Price Allocation

The pro forma combined balance sheet has been adjusted to reflect the preliminary allocation of the purchase price to identifiable net assets acquired with the excess purchase price to goodwill. The purchase price allocation within these unaudited pro forma combined financial statements is based upon a purchase price of $500.9 million, inclusive of the cash consideration and the fair value of the common stock issued. The fair value of the common stock was $3.91 per share (the closing price of Heckmann’s common stock on November 30, 2012, as reported on the New York Stock Exchange). The preliminary purchase price consideration calculation used as a basis for the pro forma balance sheet is as follows:

	Common Shares (par value $0.001)		Capital in Excess of Par Value		Total
	(In thousands of dollars)
Issuance of 95.0 million shares of Heckmann common stock to the Power Fuels stockholder (Heckmann shares at $3.91) (b10)	$	95	$	371,355	$	371,450
Cash consideration (b1)						129,406
Total consideration					$	500,856

Heckmann is in the process of completing an assessment of the fair value of assets and liabilities of Power Fuels and the related business integration plans. Given the size and timing of the Power Fuels merger, the amount of certain assets and liabilities presented are based on preliminary valuations and are subject to adjustment as additional information is obtained and the third-party valuation is finalized. The primary areas of the purchase price allocation that are not finalized related to fair values of property and equipment, intangibles, acquisition related liabilities, goodwill and the related tax impact of adjustments to these areas of the purchase price allocation. The table below represents a preliminary allocation of the total consideration to the Power Fuels tangible and intangible assets and liabilities based on management’s preliminary estimates of their respective fair values as of the date of the merger.

	Total
	(In thousands)
Cash	$	2,000
Accounts receivable		63,843
Inventories		4,255
Prepaid expenses and other receivables		952
Other assets		3,247
Property, plant and equipment		269,662
Intangible assets		150,000
Goodwill		313,518
Accounts payable and accrued expenses		(25,639	)
Debt		(150,366	)
Deferred income tax liabilities		(130,616	)
Total consideration	$	500,856

Upon completion of the fair value assessment, Heckmann anticipates that the final purchase price allocation will differ from the preliminary assessment outlined above. Any changes to the initial estimates of the fair value of the assets and liabilities will be recorded as adjustments to those assets and liabilities and residual amounts will be allocated to goodwill.

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Heckmann anticipates obtaining third-party valuations of certain of Power Fuels assets and liabilities, including property and equipment and intangible assets. Heckmann has estimated the fair value of Power Fuels’ property and equipment and intangible assets based on a preliminary internal valuation analysis. The fair value adjustment to identifiable intangible assets is being amortized over an estimated useful life of fifteen years.

Heckmann has estimated the fair value for customer relationships based on preliminary internal valuation analysis. For perspective, a 10% change in the allocation between these intangible assets and goodwill would result in a change in amortization expense, with a corresponding annual change, net of tax, in net income of approximately $0.9 million or less than $0.01 per share.

Included in the deferred income tax adjustments is an adjustment to Heckmann’s U.S. federal income tax asset valuation allowance totaling $21,299 as a result of recording deferred tax liabilities as a result of the acquisition.

(b) Combined Balance Sheets

The unaudited pro forma combined balance sheets have been adjusted to reflect:

(b1) the payment of transaction costs of $21,466, the payment of the cash portion of the merger consideration of $129,406 (which includes the payment of a $4,406 indebtedness adjustment under the terms of the Power Fuels merger agreement, related to the difference between Power Fuels’ actual debt and target debt), offset by the issuance of new Heckmann debt securities of $150,000;

(b2) the elimination of $6,755 of accounts receivable not acquired, pursuant to the terms of the merger agreement, and a proforma adjustment to reflect the collection of $18,795 of accounts receivable used by Power Fuels to repay its debt - see (b8);

(b3) the elimination of $6,536 of prepaid expenses and real property and buildings not acquired;

(b4) the addition of new intangibles of $150,000;

(b5) the addition of new goodwill of $313,518 – see (a);

(b6) the elimination of historical related party receivables of $37,663 and other assets of $18 offset by deferred financing costs related to new Heckmann debt securities and expansion of the Heckmann credit facility of $14,552 – see (b1);

(b7) the elimination of historical balances of $445 plus $1,196 of income tax benefits related to expensed transaction costs;

(b8) a $18,795 adjustment to reflect the proforma payoff of Power Fuels debt to an amount not to exceed the agreed upon amount, under the terms of the merger, offset by the issuance of $150,000 of new Heckmann debt securities to pay the cash portion of the Power Fuels merger consideration and related transaction costs – see (b1) and accrued interest and bond premium of $1,199;

(b9) the addition of $130,616 of deferred tax liabilities related to new intangible assets offset by the reduction of $21,299 of Heckmann’s historical U.S. federal income tax valuation allowance;

(b10) the addition of the equity components of the common stock portion of the purchase price consideration – see (a);

(b11) the elimination of Power Fuels historical Members equity of $223,606; and

(b12) the expense portion of transaction costs of $1,792, net of tax, offset by an adjustment of a portion of Heckmann’s U.S. federal deferred income tax valuation allowance of $21,299.

See note (a) for a discussion of the impact of potential changes in estimates related to the allocation of the purchase price.

(c) Combined Statements of Operations for the twelve months ended December 31, 2011

Subsequent to the Power Fuels merger, we expect the legacy entities of Heckmann will record U.S. federal income tax benefits from the reversal of a portion of Heckmann’s valuation allowance for U.S. federal deferred tax assets, as a result of recording deferred tax liabilities in accounting for the merger.

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The unaudited pro forma combined statements of operations for the twelve months ended December 31, 2011 have been adjusted to reflect the acquisition of TFI as reflected in the 6/20/12 Form 8-K/A, as well as the following adjustments:

(c1) the elimination of $1,592 of revenues related to the Badlands Development, LLC subsidiary that was not included in the Power Fuels merger;

(c2) the reclassification of $146,131 of costs and expenses to Cost of Goods Sold from General and Administrative expense to conform to Heckmann’s historical accounting policies offset by $2,656 of costs related to Badlands Development, LLC;

(c3) the reclassification of $146,131 of costs and expenses from General and Administrative expense to Cost of Goods Sold to conform to Heckmann’s historical accounting policies offset by $10,000 of amortization expense on new intangibles, the expensing of $2,987 of transaction costs;

(c4) the elimination of Power Fuels’ historical interest expense of $5,194 offset by new interest expense of $14,813 related to the issuance of $150,000 of new Heckmann debt securities to pay the cash portion of the Power Fuels merger consideration and related transaction costs, and $5,835 of interest costs, at an interest rate of approximately 4%, related to the refinancing Power Fuels’ historical debt;

(c5) the addition of $920 of amortization expense related to deferred financing costs incurred in the expansion of Heckmann’s revolving credit facility - see (b1) and $1,659 of amortization expense related to the issuance of new Heckmann debt securities - see (b8); and

(c6) the adjustment of a portion of Heckmann’s U.S. federal income tax valuation allowance by $19,508 plus the income tax benefit on the above adjustments of $11,996 offset by income tax expense of $33,550 on Power Fuels’ December 31, 2011 pre-tax income.

(d) Combined Statements of Operations for the nine month period ended September 30, 2012

The unaudited pro forma combined statements of operations for the nine month period ended September 30, 2012 have been adjusted to reflect the acquisition of TFI as reflected in the 6/20/12 Form 8-K/A, as well as the following adjustments:

(d1) the elimination of $2,633 of revenues related to the Badlands Development, LLC subsidiary that was not included in the Power Fuels merger;

(d2) the reclassification of $158,716 of costs and expenses to Cost of Goods Sold from General and Administrative expense to conform to Heckmann’s historical accounting policies offset by $3,894 of costs related to Badlands Development, LLC;

(d3) the reclassification of $158,716 of costs and expenses from General and Administrative expense to Cost of Goods Sold to conform to Heckmann’s historical accounting policies and the elimination of $8 of Power Fuels’ historical intangibles amortization expense, offset by $7,500 of amortization expense on new intangibles;

(d4) the elimination of Power Fuels’ historical interest expense of $6,005 offset by new interest expense of $11,109 related to the issuance of $150,000 of new Heckmann debt securities to pay the cash portion of the Power Fuels merger consideration and the related transaction costs and $4,377 of interest costs, at an interest rate of approximately 4%, related to refinancing Power Fuels’ historical debt;

(d5) the addition of $690 of amortization expense related to deferred financing costs incurred in the expansion of Heckmann’s revolving credit facility - see (b1) and $1,244 of amortization expense related to the issuance of new Heckmann debt securities - see (b8); and

(d6) the income tax benefit on the above adjustments of $9,460 offset by income tax expense of $34,616 on Power Fuels’ nine month ended September 30, 2012 pre-tax income and an adjustment to income tax expense of $13,000 to arrive at an overall combined effective income tax rate of approximately 40%.

(e) Earnings Per Common Share Adjustment

Pro forma combined basic net income per common share from continuing operations for the twelve months ended December 31, 2011, is based on Heckmann weighted average basic shares outstanding of 132,774,730 (considering the

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acquisition of TFI), plus 85.0 million shares of Heckmann common stock issued to the sole owner of Power Fuels (net of 10.0 million shares of Heckmann common stock issued and held in escrow under the terms of the Power Fuels merger agreement). Pro forma combined diluted net income per common share from continuing operations for the twelve months ended December 31, 2011, is based on Heckmann weighted average basic shares outstanding of 139,663,329 (considering the acquisition of TFI), plus 95.0 million shares of Heckmann common stock issued to the sole owner of Power Fuels. Pro forma combined basic net income per common share for the nine months ended September 30, 2012, is based on reported Heckmann weighted average basic shares outstanding of 139,312,830, plus 85.0 million shares of Heckmann common stock issued to the sole owner of Power Fuels (net of 10.0 million shares of Heckmann common stock issued and held in escrow under the terms of the Power Fuels merger agreement). Pro forma combined diluted net income per common share for the nine months ended September 30, 2012, is based on reported Heckmann weighted average diluted shares outstanding of 139,312,830, plus 95.0 million shares of Heckmann common stock issued to the sole owner of Power Fuels.

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EX-99.2

Exhibit 99.2

RISK FACTORS

In addition to risks described in our Annual Report on Form 10-K for the year ended December 31, 2011, and in Exhibit 99.3 to our Current Report on Form 8-K filed with the United States Securities and Exchange Commission (the “SEC”) on April 10, 2012, the following risks may affect us following consummation of the Merger. These are not the only ones facing us; additional risks and uncertainties not presently known to us, or that we currently see as immaterial, may also harm us.

References in these Risk Factors to “Heckmann,” the “Company,” “we,” “us” and “our” refer to Heckmann Corporation and its consolidated subsidiaries; references to “Power Fuels” are to Badlands Power Fuels, LLC, and its subsidiaries and references to “TFI” are to TFI Holdings, Inc. and its subsidiary, Thermo Fluids Inc., which were acquired by the Company on April 10, 2012. References to the “Merger” are to the November 30, 2012, merger of Badlands Power Fuels, LLC with and into a wholly-owned subsidiary of Heckmann Corporation.

Risks Related to the Merger

Certain of the benefits we expect from the Merger are based on projections and assumptions, which are uncertain and subject to change.

Management has made certain estimates and assumptions with respect to certain benefits that it expects from the Merger that affect the reported amounts of earnings, assets, liabilities, revenues, expenses, earnings per share and related information included in our and Power Fuels’ historical consolidated financial statements as well as other financial information, including pro forma financial information, and financial measures derived from that information. These estimates and assumptions may prove to be inaccurate or may change in the future, and actual results could differ materially from those estimates or assumptions. There can be no assurance that we will realize any anticipated benefits as a result of the Merger. If the estimates are not realized or we do not achieve the perceived benefits of the Merger, including perceived benefits to our cash flows and adjusted EBITDA, earnings and earnings per share, as rapidly or to the extent anticipated, the market price of our common stock may decline or our business and financial results could be negatively impacted.

We incurred significant additional indebtedness in connection with the Merger, which imposes operating and financial restrictions on us which, together with the resulting debt service obligations, could significantly limit our ability to execute our business strategy and increase the risk of default under our debt obligations.

As a result of the Merger, we incurred additional indebtedness, raising funds as an add-on to our 9.875% Senior Notes due 2018 (the “Notes”), as well as borrowings under our $325.0 million amended senior secured credit facility (the “Amended Credit Agreement”). To fund the cash portion of the Merger and pay related fees and expenses, we completed a $150 million add-on to our Notes, and incurred incremental net indebtedness of approximately $147 million under our Amended Credit Agreement.

The Amended Credit Agreement requires us to comply with certain financial maintenance covenants. In addition, the terms of the Notes and the Amended Credit Agreement also include

certain covenants restricting or limiting our ability to take certain actions. These covenants may adversely affect our ability to finance future operations or limit our ability to pursue certain business opportunities or take certain corporate actions. The covenants may also restrict our flexibility in planning for changes in our business and the industry and make us more vulnerable to economic downturns and adverse developments. The documentation governing our new indebtedness has not been finalized and, accordingly, the actual terms may further restrict our operation of our business.

Our ability to meet our cash requirements, including our debt service obligations will be dependent upon our operating performance, which will be subject to general economic and competitive conditions and to financial, business and other factors affecting our operations, many of which are or may be beyond our control. We cannot provide assurance that our business operations will generate sufficient cash flows from operations to fund these cash requirements and debt service obligations. If our operating results, cash flow or capital resources prove inadequate, we could face substantial liquidity problems and might be required to dispose of material assets or operations to meet our debt and other obligations. If we are unable to service our debt, we could be forced to reduce or delay planned expansions and capital expenditures, sell assets, restructure or refinance our debt or seek additional equity capital, and we may be unable to take any of these actions on satisfactory terms or in a timely manner. Further, any of these actions may not be sufficient to allow us to service our debt obligations or may have an adverse impact on our business. Our debt agreements may limit our ability to take certain of these actions. Our failure to generate sufficient operating cash flow to pay our debts or to successfully undertake any of these actions could have a material adverse effect on us.

In addition, the degree to which we may be leveraged as a result of the indebtedness incurred in connection with the Merger or otherwise could materially and adversely affect our ability to obtain additional financing for working capital, capital expenditures, acquisitions, debt service requirements or other purposes, could make us more vulnerable to general adverse economic, regulatory and industry conditions, could limit our flexibility in planning for, or reacting to, changes and opportunities in the markets in which we compete, could place us at a competitive disadvantage compared to our competitors that have less debt or could require us to dedicate a substantial portion of our cash flow to service our debt.

If we are unable to manage our growth profitably, our business, financial results and cash flow could suffer.

Our future financial results will depend in part on our ability to profitably manage our growth on a combined basis with Power Fuels. Management will need to maintain existing customers and attract new customers, recruit, retain and effectively manage employees, as well as expand operations and integrate customer support and financial control systems. If integration-related expenses and capital expenditure requirements are greater than anticipated, or if we are unable to manage our growth profitably after the Merger, our financial results and our cash flow may decline.

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Although we expect that the Merger will result in benefits to us, we may not realize those benefits because of integration difficulties.

Integrating the operations of Power Fuels successfully or otherwise realizing any of the anticipated benefits of the Merger, including anticipated cost savings and additional revenue opportunities, involves a number of challenges. The failure to meet these integration challenges could seriously harm our results of operations and our cash flow may decline as a result.

Realizing the benefits of the Merger will depend in part on the integration of information technology, operations, personnel and sales force. These integration activities are complex and time-consuming and we may encounter unexpected difficulties or incur unexpected costs, including:

• our inability to achieve the operating synergies and cost savings anticipated in the Merger, which would prevent us from achieving the positive earnings gains expected as a result of the Merger;

• diversion of management attention from ongoing business concerns to integration matters;

• difficulties in consolidating and rationalizing information technology platforms and administrative infrastructures;

• complexities associated with managing the combined businesses and consolidating multiple physical locations;

• difficulties in integrating personnel from different corporate cultures;

• challenges in demonstrating to our customers, including customers of Power Fuels, that the Merger will not result in adverse changes in customer service standards or business focus; and

• possible cash flow interruption or loss of revenue as a result of change of ownership transitional matters related to the Merger.

We may not successfully integrate the operations of the businesses of Power Fuels in a timely manner, and we may not realize the anticipated operating synergies and net reductions in costs and expenses and other benefits of the Merger to the extent, or in the timeframe, anticipated. In addition to the integration risks discussed above, our ability to realize these net reductions in costs and expenses and other benefits and synergies could be adversely impacted by practical or legal constraints on our ability to combine operations.

The Merger may cause disruptions in the business of Power Fuels or the business of the Company, which could have an adverse effect on our business, financial condition or results of operations.

The announcement and pendency of the Merger and post-closing integration efforts may have caused or could cause disruptions in the business of Power Fuels or of the Company. Specifically:

• current and prospective employees of Power Fuels and its subsidiaries may experience uncertainty about their future roles with us, which might adversely affect the ability of Power Fuels to retain key personnel and attract new personnel;

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• current and prospective customers of Power Fuels may experience uncertainty about the ability of Power Fuels to meet their needs, which might cause customers to seek other suppliers for the products and services provided by Power Fuels; and

• management’s attention has been focused on the Merger, which may have diverted, and may continue to divert management’s attention from the core business of Power Fuels and other opportunities that could have been beneficial to Power Fuels or the Company.

These disruptions could be exacerbated by a delay in the completion of the integration of Power Fuels following closing of the Merger and could have an adverse effect on the business, financial condition or results of operations of Power Fuels and on us.

Failure to retain key employees and skilled workers could adversely affect our business following the Merger.

Our performance following the Merger could be adversely affected if we are unable to retain certain key employees and skilled workers of Heckmann and Power Fuels, including Mark D. Johnsrud, who became our Chief Executive Officer upon completion of the Merger, and Richard J. Heckmann, our former Chairman and Chief Executive Officer, who became our Executive Chairman upon completion of the Merger. Our ability to expand our operations depends in part on our ability to increase the size of our skilled labor force. The loss of the services of one or more of these key employees or the inability to employ or retain skilled workers could adversely affect our future operating results. The demand for skilled workers is high and the supply is limited, particularly in the Bakken Shale area. In addition, current and prospective employees of Power Fuels and of Heckmann may experience uncertainty about their future roles with the Company for a period after the Merger is completed. This may adversely affect our ability to attract and retain key personnel.

Our new Chief Executive Officer’s limited experience managing a publicly traded company may divert management’s attention from operations and could harm our business.

Mr. Johnsrud has not previously been the chief executive officer of a publicly traded company and has no prior experience managing a publicly traded company and complying with federal securities laws, including compliance with disclosure requirements on a timely basis. Our management may be required to divert its attention from operational matters to compliance and reporting requirements, which could harm our business.

The completion of the Merger may cause our management to divert its attention to the integration of Power Fuels into the Company, which may cause disruptions to our business and have an adverse effect on our business, financial condition or results of operations.

Our future financial results will also depend in part on our ability to properly integrate Power Fuels’ business with our existing business. Our management will need to devote substantial attention to the integration process, before and after closing, at the same time as managing our operations. If management’s attention is substantially diverted away from our operations, this may have an adverse effect on our business, financial condition or results of operations and our cash flow may decline.

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The Merger with Power Fuels and our recent acquisition of TFI makes evaluating our operating results difficult given the significance of these transactions, and historical and unaudited pro forma financial information may not give you an accurate indication of how we will perform in the future.

The Merger and the acquisition of TFI may make it more difficult for us to evaluate and predict our future operating performance. Neither our historical results of operations, nor the separate pre-acquisition financial information of Power Fuels or TFI, give effect to these transactions; accordingly, such historical financial information does not necessarily reflect what our, Power Fuels’ or TFI’s financial position, operating results and cash flows will be in the future on a consolidated basis following consummation of the acquisition. Unaudited pro forma financial information giving effect to the Merger and the acquisition of TFI, which we expect to provide within the time frames required by SEC rules, will not represent, and should not be relied upon as reflecting, what our financial position, results of operations or cash flows actually would have been if the transactions referred to therein had been consummated on the dates or for the periods indicated, or what such results will be for any future date or any future period.

Our future results of operations could be adversely affected if the goodwill recorded in the Merger subsequently requires impairment.

We will record an asset called “goodwill” equal to the excess amount we pay for Power Fuels over the fair values of the assets and liabilities acquired and identified intangible assets to be allocated to Power Fuels. The amount of goodwill on our consolidated balance sheet will increase substantially as a result of the Merger. The Financial Accounting Standards Board ASC Topic 350 “Intangibles – Goodwill and Other” provides specific guidance for testing goodwill and other non-amortized intangible assets for impairment. The testing of goodwill and other intangible assets for impairment requires us to make significant estimates about our future performance and cash flows, as well as other assumptions. These estimates can be affected by numerous factors, including changes in the definition of a business segment in which we operate; changes in economic, industry or market conditions; changes in business operations; changes in competition; or potential changes in the share price of our common stock and market capitalization. Changes in these factors, or changes in actual performance compared with estimates of our future performance, could affect the fair value of goodwill or other intangible assets, which may result in an impairment charge. We cannot accurately predict the amount or timing of any impairment of assets. Should the value of our goodwill or other intangible assets become impaired, it could have a material adverse effect on our consolidated results of operations and could result in our incurring net losses in future periods.

It is likely that the issuance of our common stock to Owner in the Merger would result in a limitation on our ability to use our net operating losses and other tax attributes to reduce future income tax liabilities.

It is likely that the issuance of our common stock to Owner in the Merger would cause an ownership change for purposes of Section 382 of the United States Internal Revenue Code. In the

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event of an ownership change, Section 382 of the United States Internal Revenue Code limits the amount of pre-change net operating losses and other tax attributes that can be used to offset post-change taxable income after the ownership change occurs.

Risks Related to Power Fuels

Power Fuels is subject to many of the same business risks as our Fluids Management Division.

As an environmental services company providing water delivery and disposal, fluids transportation and handling, water sales and related equipment rental services for unconventional oil and gas exploration and production businesses, Power Fuels is subject to many of the same risks faced by our Fluids Management Division (formerly referred to as Heckmann Water Resources or HWR). For example, the following Risk Factor included in Exhibit 99.3 to our Current Report on Form 8-K filed with the SEC on April 10, 2012, continues to apply to our Fluids Management business and is also applicable to Power Fuels. Like other operators in oil-rich shales (including our Fluids Management business), Power Fuels is experiencing increasing competition and pricing pressure in the Bakken Shale as competitors have repositioned equipment and resources from natural gas shale areas to oil and liquids-rich shale areas, and as drilling growth trends have recently moderated in response to a more uncertain geopolitical and oil price environment, which have affected and may continue to affect utilization rates, revenues and profit margins:

Our Fluids Management Division’s business depends on spending by the oil and natural gas industry in the United States, and this spending and our business has been, and may continue to be, adversely affected by industry and financial market conditions that are beyond our control.

We depend on our customers’ willingness to make operating and capital expenditures to explore, develop and produce oil and natural gas in the United States. Declines in these expenditures, due to the low natural gas price environment or other factors, could result in project modification, delays or cancellations, general business disruptions, and delays in, or nonpayment of, amounts owed to us. Customers’ expectations for lower market prices for oil and natural gas, as well as the availability of capital for operating and capital expenditures, may also cause our customers to curtail spending, thereby reducing demand for our services.

Industry conditions are influenced by numerous factors over which we have no control, including:

• the domestic and worldwide price and supply of natural gas, natural gas liquids and oil, including the natural gas inventories and oil reserves of the United States;

• changes in the level of consumer demand;

• the price and availability of alternative fuels;

• weather conditions;

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• the availability, proximity and capacity of pipelines, other transportation facilities and processing facilities;

• the level and effect of trading in commodity futures markets, including by commodity price speculators and others;

• the nature and extent of domestic and foreign governmental regulations and taxes;

• the ability of the members of the Organization of Petroleum Exporting Countries to agree to and maintain oil price and production controls;

• political instability or armed conflict in oil and natural gas producing regions;

• currency exchange rates; and

• overall domestic and global economic and market conditions.

The volatility of the oil and natural gas industry and the impact on exploration and production activity could adversely impact the level of drilling activity by some of our customers or in some of the regions in which we operate. For example, natural gas spot prices have fallen significantly since late 2011 and the number of active drilling rigs operating in the Haynesville, Barnett and Marcellus Shale areas has declined with many of these rigs moving to other oil- and liquids-rich shale areas such as the Utica, Eagle Ford, Bakken and Permian Basin. This transition in exploration and production activity has caused and may continue to cause a decline in the demand for our services in affected regions where we operate and has adversely affected and may continue to affect the price of our services and the financial results of our operations. In addition, reduced discovery rates of new oil and natural gas reserves in our market areas also may have a negative long-term impact on our business, even in an environment of stronger oil and natural gas prices, due to reduced fracking activity and reduced produced water from existing producing wells to the extent existing production is not replaced and the number of producing wells for us to service declines.

Recent declines in natural gas prices have caused many oil and natural gas producers to announce reductions in capital budgets for future periods. Limitations on the availability of capital, or higher costs of capital, for financing expenditures may cause these and other oil and natural gas producers to make additional reductions to capital budgets in the future even if commodity prices increase from current levels. These cuts in spending have curtailed drilling programs as well as discretionary spending on well services, which have also adversely affected and may continue to affect the demand for our services, the rates we can charge and our utilization. In addition, certain of our customers could become unable to pay their vendors and service providers, including us, and we increased our bad debt reserve in 2011 to reflect this development. Any of these conditions or events could adversely affect our operating results and cash flows.

Other risks affecting Power Fuels include the risks set forth under “Risks Related to Our Company” and “Risks Related to Environmental and Other Governmental Regulation” in Exhibit 99.3 to our Current Report on Form 8-K filed with the SEC on April 10, 2012.

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Power Fuels depends on certain key customers for a significant portion of its revenues. The loss of any of these key customers could result in a decline in our business after the Merger.

Power Fuels relies on a limited number of customers for a significant portion of its revenues. For the year ended December 31, 2011, Power Fuels’ three largest customers, Hess Corporation, Whiting Oil & Gas Corporation and Denbury Onshore, LLC accounted for approximately 24%, 22% and 7%, respectively, of Power Fuels’ total revenues. The loss of all, or even a portion of, the revenues from these customers, as a result of competition, market conditions or otherwise could have a material adverse effect on our business, results of operations, financial condition and cash flows after the Merger.

The supply of critical infrastructure assets, in particular housing for Power Fuels’ employees, in the Bakken Shale area are not able to keep pace with the rapid growth in the region caused by the boom in the energy and environmental services industry.

The Bakken Shale area has experienced a rapid increase in population over the past several years, as a result of the increasing drilling activity, which has outpaced the ability of the public and private sectors to provide certain critical infrastructure and services to support the influx of people into the region. As a result, there is a shortage of fixed housing in the region, making it difficult for operators or other businesses to attract quality, long-term personnel. Through an entity he controls, but which was not included in the Merger, Mr. Johnsrud owns fixed-housing units in the Bakken Shale area that he made available for rent to employees of Power Fuels. Prior to the Merger, Power Fuels’ employees had priority access to rent the housing owned by this entity. Although there is no formal arrangement with Mr. Johnsrud to ensure that Power Fuels’ employees have continued access to rent the housing owned by his entity after the Merger is completed, we believe that, following the Merger, Power Fuels’ employees will continue to have access to rent such housing. Power Fuels’ employees will not be entitled to any preference in access to rent such housing and there can be no assurance that there will be sufficient housing available for all of Power Fuels’ employees.

As a public company, our business is subject to regulations regarding corporate governance, disclosure controls, internal control over financial reporting and other compliance areas, which increase both our costs and the risk of noncompliance with applicable laws.

We are subject to the reporting requirements of the United States Securities Exchange Act of 1934, the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and the rules and regulations of the NYSE. Prior to the Merger, Power Fuels was a privately owned company and not subject to these rules and regulations. Upon closing of the Merger, our legal, accounting and financial compliance costs will increase in order to bring Power Fuels into compliance with corporate governance disclosure controls, particularly the Sarbanes-Oxley Act. The Sarbanes-Oxley Act requires, among other things, that we maintain effective disclosure controls and procedures and internal controls over financial reporting. This will require us to incur substantial accounting expense and expend significant management efforts. If we are not able to comply with the requirements of the Sarbanes-Oxley Act, the market price of our stock could decline and we could be subject to sanctions or investigations by the NYSE, the SEC or other regulatory authorities.

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Power Fuels may have liabilities that are not known, probable or estimable at this time.

As a result of the Merger, Power Fuels became our subsidiary and we effectively assumed all of its liabilities, whether or not asserted. There could be unasserted claims or assessments that we failed or were unable to discover or identify in the course of performing due diligence investigations of Power Fuels. In addition, there may be liabilities that are neither probable nor estimable at this time which may become probable and estimable in the future. Any such liabilities, individually or in the aggregate, could have a material adverse effect on our business. We may learn additional information about Power Fuels that adversely affects us, such as unknown, unasserted or contingent liabilities and issues relating to compliance with applicable laws.

Risks Related to our Indebtedness

Our substantial level of indebtedness could adversely affect our financial condition and prevent us from fulfilling our obligations under our indebtedness.

As of September 30, 2012, after giving effect to the Merger, the related financing transactions and the application of the net proceeds therefrom, we have (a) approximately $569 million of indebtedness outstanding on a consolidated basis, of which approximately $169 million (including approximately $21 million of capital leases) is secured and (b) approximately $177 million of anticipated availability (less approximately $1 million used for letters of credit) under our Amended Credit Agreement. Borrowings under our Amended Credit Agreement effectively rank senior to our unsecured indebtedness, including our $400.0 million of unsecured Notes, to the extent of the value of the assets securing such debt. Our substantial level of indebtedness increases the risk that we may be unable to generate cash sufficient to pay amounts due in respect of our indebtedness. Our substantial level of indebtedness could have other important consequences. For example, our level of indebtedness and the terms of our debt agreements may:

• make it more difficult for us to satisfy our financial obligations under our other indebtedness and our contractual and commercial commitments and increase the risk that we may default on our debt obligations;

• prevent us from raising the funds necessary to repurchase Notes tendered to us if there is a change of control, which would constitute a default under the indenture governing the Notes;

• heighten our vulnerability to downturns in our business, our industry or in the general economy and restrict us from exploiting business opportunities or making acquisitions;

• limit management’s discretion in operating our business;

• require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness, thereby reducing the availability of our cash flow to fund working capital, capital expenditures, and other general corporate purposes;

• require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness, thereby reducing the availability of our cash flow to fund working capital, capital expenditures, and other general corporate purposes;

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• place us at a competitive disadvantage compared to our competitors that have less debt;

• limit our ability to borrow additional funds; and

• limit our flexibility in planning for, or reacting to, changes in our business, the industry in which we operate or the general economy.

Each of these factors may have a material and adverse effect on our financial condition and viability. Our ability to make payments with respect to the Notes and to satisfy our other debt obligations will depend on our future operating performance, which will be affected by prevailing economic conditions and financial, business and other factors affecting our Company and industry, many of which are beyond our control. In addition, the indenture governing the Notes and the Amended Credit Agreement contain financial and other restrictive covenants that will our ability to engage in activities that may be in our long-term best interests. Our failure to comply with those covenants could result in an event of default that, if not cured or waived, could result in the acceleration of all of our debt.

Borrowings under our Amended Credit Agreement bear interest at variable rates. If we were to borrow funds and these rates were to increase significantly, our ability to borrow additional funds may be reduced and the risks related to our substantial indebtedness would intensify. While we may enter into agreements limiting our exposure to higher interest rates, any such agreements may not offer complete protection for this risk.

Despite existing debt levels, we may still be able to incur substantially more debt, which would increase the risks associated with our leverage.

Even with our existing debt levels, we and our subsidiaries may be able to incur substantial amounts of additional debt in the future, some or all of which may be secured. As of September 30, 2012, after giving effect to the Merger, the related financing transactions and the application of the net proceeds therefrom, we have (a) approximately $569 million of indebtedness outstanding on a consolidated basis, of which approximately $169 million (including approximately $21 million of capital leases) is secured and (b) approximately $177 million of anticipated availability (less approximately $1 million used for letters of credit) under our Amended Credit Agreement. In addition, the indenture governing the Notes and the Amended Credit Agreement allow us to issue additional debt, including additional notes, under certain circumstances, which may be guaranteed by our subsidiaries. Although the terms of the Amended Credit Agreement and the indenture governing the Notes limit our ability to incur additional debt, these terms do not and will not prohibit us from incurring substantial amounts of additional debt for specific purposes or under certain circumstances, some or all of which may be secured. If new debt is added to our and our subsidiaries’ current debt levels, the related risks that we and they now face could intensify and could further exacerbate the risks associated with our leverage.

We may not be able to generate sufficient cash flow to meet our debt service, lease payments and other obligations due to events beyond our control.

Our ability to generate cash flows from operations, to make scheduled payments on or refinance our indebtedness and to fund working capital needs and planned capital expenditures will depend

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on our future financial performance and our ability to generate cash in the future. Our future financial performance will be affected by a range of economic, financial, competitive, business and other factors that we cannot control, such as general economic, legislative, regulatory and financial conditions in our industry, the economy generally or other risks described in our reports filed with the SEC. A significant reduction in operating cash flows resulting from changes in economic, legislative or regulatory conditions, increased competition or other events beyond our control could increase the need for additional or alternative sources of liquidity and could have a material adverse effect on our business, financial condition, results of operations, prospects and our ability to service our debt and other obligations. If we are unable to service our indebtedness or to fund our other liquidity needs, we may be forced to adopt an alternative strategy that may include actions such as reducing or delaying capital expenditures, selling assets, restructuring or refinancing our indebtedness, seeking additional capital, or any combination of the foregoing. If we raise additional debt, it would increase our interest expense, leverage and our operating and financial costs. We cannot assure you that any of these alternative strategies could be effected on satisfactory terms, if at all, or that they would yield sufficient funds to make required payments on our indebtedness or to fund our other liquidity needs. Reducing or delaying capital expenditures or selling assets could delay future cash flows. In addition, the terms of existing or future debt agreements may restrict us from adopting any of these alternatives. We cannot assure you that our business will generate sufficient cash flows from operations or that future borrowings will be available in an amount sufficient to enable us to pay our indebtedness or to fund our other liquidity needs.

If for any reason we are unable to meet our debt service and repayment obligations, we would be in default under the terms of the agreements governing our indebtedness, which would allow our creditors at that time to declare all outstanding indebtedness to be due and payable. This would likely in turn trigger cross-acceleration or cross-default rights between our applicable debt agreements. Under these circumstances, our lenders could compel us to apply all of our available cash to repay our borrowings or they could prevent us from making payments on the Notes or our other indebtedness. In addition, the lenders under our Amended Credit Agreement or other secured indebtedness could seek to foreclose on our assets that are their collateral. If the amounts outstanding under our indebtedness were to be accelerated, or were the subject of foreclosure actions, we cannot assure you that our assets would be sufficient to repay in full the money owed to the lenders or to our other debt holders.

The indenture governing the Notes and the Amended Credit Facility impose significant operating and financial restrictions on us and our subsidiaries that may prevent us from pursuing certain business opportunities and restrict our ability to operate our business.

The indenture governing the Notes and the Amended Credit Agreement contain covenants that restrict our and our restricted subsidiaries’ ability to take various actions, such as:

• transferring or selling assets;

• paying dividends or distributions, buying subordinated indebtedness or securities, making certain investments or making other restricted payments;

• incurring or guaranteeing additional indebtedness or issuing preferred stock;

• creating or incurring liens;

• incurring dividend or other payment restrictions affecting restricted subsidiaries;

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• consummating a merger, consolidation or sale of all or substantially all our assets;

• entering into transactions with affiliates;

• engaging in business other than a business that is the same or similar, reasonably related, complementary or incidental to our business;

• designating subsidiaries as unrestricted subsidiaries;

• making acquisitions;

• making capital expenditures;

• entering into sale and leaseback transactions; and

• prepaying, redeeming or repurchasing debt (including the Stage II Notes) prior to stated maturities.

In addition, our Amended Credit Agreement requires, and any future credit facilities may require, us to maintain minimum cash balances and operating performance levels and comply with specified financial ratios, including regarding net leverage, debt to capitalization, fixed charge coverage or similar ratios. A breach of any of the foregoing covenants under the indenture governing the Notes or the Amended Credit Agreement, as applicable, could result in a default. In addition, any debt agreements we enter into in the future may further limit our ability to enter into certain types of transactions.

We may also be prevented from taking advantage of business opportunities that arise if we fail to meet certain ratios or because of the limitations imposed on us by such restrictive covenants. These restrictions may also limit our ability to plan for or react to market conditions, meet capital needs or otherwise restrict our activities or business plans and adversely affect our ability to finance our operations, enter into acquisitions, execute our business strategy, effectively compete with companies that are not similarly restricted or engage in other business activities that would be in our interest. In the future, we may also incur debt obligations that might subject us to additional and different restrictive covenants that could affect our financial and operational flexibility. We cannot assure you that we will be granted waivers or amendments to the indenture governing the Notes, the Amended Credit Agreement or such other debt obligations if for any reason we are unable to comply with our obligations thereunder or that we will be able to refinance our debt on acceptable terms or at all should we seek to do so.

The covenants described above are subject to important exceptions and qualifications. Our ability to comply with these covenants will likely be affected by events beyond our control, and we cannot assure you that we will satisfy those requirements. A breach of any of these provisions could result in a default under such indenture, Amended Credit Agreement or other debt obligation, or any future credit facilities we may enter into, which could allow all amounts outstanding thereunder to be declared immediately due and payable, subject to the terms and conditions of the documents governing such indebtedness. If we were unable to repay the accelerated amounts, our secured lenders could proceed against the collateral granted to them to secure such indebtedness. This would likely in turn trigger cross-acceleration and cross-default rights under any other credit facilities and indentures. If the amounts outstanding under the Notes or any other indebtedness outstanding at such time were to be accelerated or were the subject of foreclosure actions, we cannot assure you that our assets would be sufficient to repay in full the money owed to the lenders or to our other debt holders.

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