|(Check one):||þ Form 10-K o Form 20-F o Form 11-K o Form 10-Q o Form 10-D o Form N-SAR o Form N-CSR|
|For Period Ended:||December 31, 2008|
|o Transition Report on Form 10-K|
|o Transition Report on Form 20-F|
|o Transition Report on Form 11-K|
|o Transition Report on Form 10-Q|
|o Transition Report on Form N-SAR|
|For the Transition Period Ended:|
|(a)||The reason described in reasonable detail in Part III of this form could not be eliminated without unreasonable effort or expense|
|(b)||The subject annual report, semi-annual report, transition report on Form 10-K, Form 20-F, Form 11-K, Form N-SAR or Form N-CSR, or portion thereof, will be filed on or before the fifteenth calendar day following the prescribed due date; or the subject quarterly report or transition report on Form 10-Q or subject distribution report on Form 10-D, or portion thereof, will be filed on or before the fifth calendar day following the prescribed due date; and|
|(c)||The accountants statement or other exhibit required by Rule 12b-25(c) has been attached if applicable.|
Since January 2009, the Companys staff and resources have been substantially committed to the negotiation and implementation of the 10% Convertible Senior Notes Refinancing, the Investment Agreements and other refinancing and negotiation efforts, which have had a direct impact on the Companys ability to timely file its Form 10-K.
The Company intends to file its Form 10-K with the Securities and Exchange Commission as promptly as practicable and is presently unaware of any circumstances that would prevent it from filing its Form 10-K on or before the fifteenth calendar day following the prescribed due date in compliance with Rule 12b-25.
Management has not yet completed its evaluation as to whether substantial doubt exists relative to the Companys ability to continue as a going concern for a reasonable period of time. A significant element of that evaluation relates to uncertainties associated with funding of amounts stipulated in the aforementioned Investment Agreements. These uncertainties may not be resolved by the time the Company files its Form 10-K with the Securities and Exchange Commission. In the event such uncertainties remain unresolved, management anticipates that KPMG LLPs auditors report relative to the Companys 2008 consolidated financial statements will contain an explanatory paragraph indicating substantial doubt about the Companys ability to continue as a going concern.
In addition to resulting in termination of further funding pursuant to the Investment Agreements, the inclusion of such a paragraph by KPMG LLP would result in a default under certain indebtedness of the Company, XM Holdings and XM Satellite Radio Inc. (XM Inc.) which defaults, if not cured or waived prior to the expiration of the applicable grace period, would result in an event of default under other indebtedness of the Company, XM Holdings and XM Inc. Such events of default, if they occur, provide the lenders the right to demand all amounts due under the respective agreements immediately due and payable.
This notification includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. The words expects and intends and similar terms and phrases are used in this notification to identify forward-looking statements, including statements regarding the estimated timing for the filing of the Companys Form 10-K. Risks, uncertainties and assumptions that could affect the Companys forward-looking statements include, among other things, the time needed for the Company to finalize and file its Form 10-K. Unless required by law, the Company expressly disclaims any obligation to update publicly any forward-looking statements, whether as a result of new information, future events or otherwise.
|(1)||Name and telephone number of person to contact in regard to this notification|
|Patrick L. Donnelly||(212)||584-5100|
|(Area Code)||(Telephone Number)|
|(2)||Have all other periodic reports required under Section 13 or 15(d) of the Securities Exchange Act of 1934 or Section 30 of the Investment Company Act of 1940 during the preceding 12 months or for such shorter period that the registrant was required to file such report(s) been filed? If answer is no, identify report(s).|
|Yes þ No o|
|(3)||Is it anticipated that any significant change in results of operations from the corresponding period for the last fiscal year will be reflected by the earnings statements to be included in the subject report or portion thereof?|
|Yes þ No o|
|If so, attach an explanation of the anticipated change, both narratively and quantitatively, and, if appropriate, state the reasons why a reasonable estimate of the results cannot be made.|
Attachment 1 to Form 12b-25
|March 2, 2009||By||/s/ Patrick L. Donnelly|
|Name: Patrick L. Donnelly|
|Title: Executive Vice President, General Counsel and Secretary|