Ontrak, Inc. - Quarter Report: 2021 September (Form 10-Q)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 2021
Commission File Number 001-31932
____________________________
Ontrak, Inc.
(Exact name of registrant as specified in its charter)
____________________________
Delaware | 88-0464853 | ||||
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | ||||
2120 Colorado Ave., Suite 230, Santa Monica, CA 90404
(Address of principal executive offices, including zip code)
(310) 444-4300
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||
| Common Stock, $0.0001 par value | OTRK | The NASDAQ Global Market | ||||||
| 9.50% Series A Cumulative Perpetual Preferred Stock, $0.0001 par value | OTRKP | The NASDAQ Global Market | ||||||
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes x No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,’’ “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer | ¨ | Accelerated filer | ¨ | ||||||||
| Non-accelerated filer | ☒ | Smaller reporting company | ☒ | ||||||||
Emerging growth company | ☐ | ||||||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No x
As of October 29, 2021, there were 19,164,842 shares of the registrant's common stock, $0.0001 par value per share, outstanding.
TABLE OF CONTENTS
| Signatures | |||||||||||
In this Quarterly Report on Form 10-Q, all references to “Ontrak,” “Ontrak, Inc.,” “we,” “us,” “our” or the “Company” mean Ontrak, Inc., its wholly-owned subsidiaries and variable interest entities, except where it is made clear that the term means only the parent company. The Company’s common stock, par value $0.0001 per share, is referred to as “common stock" and the Company’s 9.50% Series A Cumulative Perpetual Preferred Stock, par value $0.0001 per share, is referred to as “Series A Preferred Stock.”
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
ONTRAK, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands, except share and per share data)
| September 30, 2021 | December 31, 2020 | ||||||||||
Assets | (unaudited) | ||||||||||
Current assets: | |||||||||||
| Cash and cash equivalents | $ | 75,303 | $ | 86,907 | |||||||
| Restricted cash - current | 8,954 | 9,127 | |||||||||
Receivables, net | 5,203 | 16,682 | |||||||||
Unbilled receivables | 5,260 | 4,426 | |||||||||
| Deferred costs - current | 1,207 | 2,352 | |||||||||
Prepaid expenses and other current assets | 2,734 | 4,144 | |||||||||
Total current assets | 98,661 | 123,638 | |||||||||
Long-term assets: | |||||||||||
Property and equipment, net | 5,474 | 2,273 | |||||||||
| Restricted cash - long-term | 510 | 7,176 | |||||||||
| Goodwill | 5,713 | 5,727 | |||||||||
| Intangible assets, net | 2,651 | 3,561 | |||||||||
| Other assets | 1,120 | 367 | |||||||||
| Operating lease right-of-use assets | 1,692 | 1,959 | |||||||||
Total assets | $ | 115,821 | $ | 144,701 | |||||||
| Liabilities and stockholders' equity | |||||||||||
Current liabilities: | |||||||||||
Accounts payable | $ | 1,135 | $ | 1,287 | |||||||
Accrued compensation and benefits | 3,623 | 4,723 | |||||||||
Deferred revenue | 5,321 | 20,954 | |||||||||
| Current portion of operating lease liabilities | 546 | 434 | |||||||||
| Other accrued liabilities | 5,270 | 9,012 | |||||||||
Total current liabilities | 15,895 | 36,410 | |||||||||
Long-term liabilities: | |||||||||||
| Long-term debt, net | 46,353 | 45,719 | |||||||||
| Long-term operating lease liabilities | 1,082 | 1,403 | |||||||||
| Long-term finance lease liabilities | 192 | 418 | |||||||||
Total liabilities | 63,522 | 83,950 | |||||||||
| Commitments and contingencies | |||||||||||
| Stockholders' equity: | |||||||||||
Preferred stock, $0.0001 par value; 50,000,000 shares authorized; 3,770,265 shares issued and outstanding at each of September 30, 2021 and December 31, 2020 | — | — | |||||||||
Common stock, $0.0001 par value; 500,000,000 shares authorized; 19,155,481 and 17,543,218 shares issued and outstanding at September 30, 2021 and December 31, 2020, respectively | 2 | 2 | |||||||||
| Additional paid-in capital | 423,414 | 414,773 | |||||||||
| Accumulated deficit | (371,117) | (354,024) | |||||||||
| Total stockholders' equity | 52,299 | 60,751 | |||||||||
| Total liabilities and stockholders' equity | $ | 115,821 | $ | 144,701 | |||||||
See notes to condensed consolidated financial statements.
3
ONTRAK, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited, in thousands, except per share data)
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2021 | 2020 | 2021 | 2020 | ||||||||||||||||||||
| Revenue | $ | 18,594 | $ | 24,022 | $ | 73,801 | $ | 53,586 | |||||||||||||||
| Cost of revenue | 5,856 | 13,068 | 27,125 | 30,177 | |||||||||||||||||||
| Gross profit | 12,738 | 10,954 | 46,676 | 23,409 | |||||||||||||||||||
| Operating expenses: | |||||||||||||||||||||||
| Research and development | 4,563 | 3,697 | 13,531 | 8,015 | |||||||||||||||||||
| Sales and marketing | 2,269 | 1,165 | 7,839 | 3,102 | |||||||||||||||||||
| General and administrative | 11,374 | 9,100 | 35,305 | 25,391 | |||||||||||||||||||
| Total operating expenses | 18,206 | 13,962 | 56,675 | 36,508 | |||||||||||||||||||
| Operating loss | (5,468) | (3,008) | (9,999) | (13,099) | |||||||||||||||||||
| Other expense, net | (361) | (847) | (1,004) | (1,226) | |||||||||||||||||||
| Interest expense, net | (2,054) | (1,818) | (6,090) | (5,156) | |||||||||||||||||||
| Net loss | $ | (7,883) | $ | (5,673) | $ | (17,093) | $ | (19,481) | |||||||||||||||
| Dividends on preferred stock - declared and undeclared | (2,239) | (464) | (6,716) | (464) | |||||||||||||||||||
| Net loss attributable to common stockholders | $ | (10,122) | $ | (6,137) | $ | (23,809) | $ | (19,945) | |||||||||||||||
| Net loss per common share, basic and diluted | $ | (0.54) | $ | (0.36) | $ | (1.31) | $ | (1.17) | |||||||||||||||
| Weighted-average common shares outstanding, basic and diluted | 18,915 | 17,280 | 18,236 | 16,990 | |||||||||||||||||||
See notes to condensed consolidated financial statements.
4
ONTRAK, INC.
CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(unaudited, in thousands, except share and per share data)
| Preferred Stock | Common Stock | Additional Paid-In Capital | Accumulated Deficit | Total Stockholders' Equity | ||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | |||||||||||||||||||||||||||||||||||
| Balance at June 30, 2021 | 3,770,265 | $ | — | 18,657,840 | $ | 2 | $ | 422,265 | $ | (363,234) | $ | 59,033 | ||||||||||||||||||||||||||
| Preferred dividends declared | — | — | — | — | (2,274) | — | (2,274) | |||||||||||||||||||||||||||||||
| Warrants exercised | — | — | 463,567 | — | — | — | — | |||||||||||||||||||||||||||||||
| Stock options exercised | — | — | 16,083 | — | 183 | — | 183 | |||||||||||||||||||||||||||||||
| 401(k) employer match | — | — | 17,991 | — | 330 | — | 330 | |||||||||||||||||||||||||||||||
| Stock-based compensation expense | — | — | — | — | 2,910 | — | 2,910 | |||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | (7,883) | (7,883) | |||||||||||||||||||||||||||||||
| Balance at September 30, 2021 | 3,770,265 | $ | — | 19,155,481 | $ | 2 | $ | 423,414 | $ | (371,117) | $ | 52,299 | ||||||||||||||||||||||||||
| Balance at June 30, 2020 | — | $ | — | 17,055,609 | $ | 2 | $ | 315,076 | $ | (345,122) | $ | (30,044) | ||||||||||||||||||||||||||
| Preferred stock issued, net | 1,955,000 | — | — | — | 45,104 | — | 45,104 | |||||||||||||||||||||||||||||||
| Warrants exercised | — | — | 61,063 | — | 1,450 | — | 1,450 | |||||||||||||||||||||||||||||||
| Stock options exercised | — | — | 288,419 | — | 2,277 | — | 2,277 | |||||||||||||||||||||||||||||||
| 401(k) employer match | — | — | 6,038 | — | 246 | — | 246 | |||||||||||||||||||||||||||||||
| Stock-based compensation expense | — | — | — | — | 1,751 | — | 1,751 | |||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | (5,673) | (5,673) | |||||||||||||||||||||||||||||||
| Balance at September 30, 2020 | 1,955,000 | $ | — | 17,411,129 | $ | 2 | $ | 365,904 | $ | (350,795) | $ | 15,111 | ||||||||||||||||||||||||||
| Preferred Stock | Common Stock | Additional Paid-In Capital | Accumulated Deficit | Total Stockholders' Equity | ||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | |||||||||||||||||||||||||||||||||||
| Balance at December 31, 2020 | 3,770,265 | $ | — | 17,543,218 | $ | 2 | $ | 414,773 | $ | (354,024) | $ | 60,751 | ||||||||||||||||||||||||||
| Preferred dividends declared | — | — | — | — | (6,712) | — | (6,712) | |||||||||||||||||||||||||||||||
| Warrants exercised | — | — | 1,184,641 | — | 58 | — | 58 | |||||||||||||||||||||||||||||||
| Stock options exercised | — | — | 395,181 | — | 5,584 | — | 5,584 | |||||||||||||||||||||||||||||||
| 401(k) employer match | — | — | 32,441 | — | 840 | — | 840 | |||||||||||||||||||||||||||||||
| Stock-based compensation expense | — | — | — | — | 8,871 | — | 8,871 | |||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | (17,093) | (17,093) | |||||||||||||||||||||||||||||||
| Balance at September 30, 2021 | 3,770,265 | $ | — | 19,155,481 | $ | 2 | $ | 423,414 | $ | (371,117) | $ | 52,299 | ||||||||||||||||||||||||||
| Balance at December 31, 2019 | — | $ | — | 16,616,165 | $ | 2 | $ | 307,403 | $ | (331,314) | $ | (23,909) | ||||||||||||||||||||||||||
| Preferred stock issued, net | 1,955,000 | — | — | — | 45,104 | — | 45,104 | |||||||||||||||||||||||||||||||
| Warrants exercised | — | — | 72,112 | — | 1,470 | — | 1,470 | |||||||||||||||||||||||||||||||
| Stock options exercised | — | — | 684,441 | — | 5,742 | — | 5,742 | |||||||||||||||||||||||||||||||
| 401(k) employer match | — | — | 12,687 | — | 386 | — | 386 | |||||||||||||||||||||||||||||||
| Stock-based compensation expense | — | — | 25,724 | — | 5,799 | — | 5,799 | |||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | (19,481) | (19,481) | |||||||||||||||||||||||||||||||
| Balance at September 30, 2020 | 1,955,000 | $ | — | 17,411,129 | $ | 2 | $ | 365,904 | $ | (350,795) | $ | 15,111 | ||||||||||||||||||||||||||
See notes to condensed consolidated financial statements.
5
ONTRAK, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited, in thousands)
6
| For the Nine Months Ended September 30, | |||||||||||
| 2021 | 2020 | ||||||||||
| Cash flows from operating activities | |||||||||||
| Net loss | $ | (17,093) | $ | (19,481) | |||||||
| Adjustments to reconcile net loss to net cash used in operating activities: | |||||||||||
| Stock-based compensation expense | 8,871 | 5,799 | |||||||||
| Paid-in-kind interest expense | — | 3,500 | |||||||||
| Depreciation expense | 658 | 178 | |||||||||
| Amortization expense | 2,181 | 1,091 | |||||||||
| Gain on forgiveness of PPP loan | (171) | — | |||||||||
| Change in fair value of warrants | — | 1,217 | |||||||||
| Change in fair value of contingent consideration | 1,305 | — | |||||||||
| 401(k) employer match in common shares | 860 | 405 | |||||||||
| Changes in operating assets and liabilities: | |||||||||||
| Receivables | 11,478 | (597) | |||||||||
| Unbilled receivables | (834) | (2,238) | |||||||||
| Prepaid expenses and other current assets | 1,674 | (2,260) | |||||||||
| Accounts payable | (285) | 55 | |||||||||
| Deferred revenue | (15,633) | 4,641 | |||||||||
| Leases liabilities | (208) | (273) | |||||||||
| Other accrued liabilities | (3,914) | 1,879 | |||||||||
| Net cash used in operating activities | (11,111) | (6,084) | |||||||||
| Cash flows from investing activities | |||||||||||
| Purchase of property and equipment | (3,865) | (1,131) | |||||||||
| Net cash used in investing activities | (3,865) | (1,131) | |||||||||
| Cash flows from financing activities | |||||||||||
| Proceeds from issuance of preferred stock | — | 45,530 | |||||||||
| Preferred stock issuance costs | — | (426) | |||||||||
| Dividends paid | (6,712) | — | |||||||||
| Proceeds from 2024 Notes | — | 10,000 | |||||||||
| Debt issuance costs | — | (128) | |||||||||
| Proceeds from warrant exercise | 58 | 133 | |||||||||
| Proceeds from options exercise | 5,584 | 5,742 | |||||||||
| Finance lease obligations | (243) | (126) | |||||||||
| Financed insurance premium payments | (2,154) | (131) | |||||||||
| Net cash (used in) provided by financing activities | (3,467) | 60,594 | |||||||||
| Net change in cash and restricted cash | (18,443) | 53,379 | |||||||||
| Cash and restricted cash at beginning of period | 103,210 | 14,018 | |||||||||
| Cash and restricted cash at end of period | $ | 84,767 | $ | 67,397 | |||||||
| Supplemental disclosure of cash flow information: | |||||||||||
| Interest paid | $ | 5,483 | $ | 1,108 | |||||||
| Non cash financing and investing activities: | |||||||||||
| Reclassification of warrant liability to equity upon exercise of warrant | $ | — | $ | 1,337 | |||||||
| Finance lease and accrued purchases of property and equipment | 230 | 517 | |||||||||
| Stock options exercise in transit | — | — | |||||||||
| Financed insurance premiums | — | 318 | |||||||||
See notes to condensed consolidated financial statements.
7
Note 1. Organization
Company Overview
Ontrak, Inc. (“Ontrak” or the “Company”) is an AI-powered and telehealth-enabled, virtualized healthcare company, whose mission is to help improve the health and save the lives of as many people as possible. The Company’s PRE™ (Predict-Recommend-Engage) platform organizes and automates healthcare data integration and analytics through the application of machine intelligence to deliver analytic insights. The Company's PRE platform predicts people whose chronic disease will improve with behavior change, recommends effective care pathways that people are willing to follow, and engages people who are not getting the care they need. By combining predictive analytics with human engagement, the Company delivers improved member health and validated outcomes and savings to healthcare payors.
The Company’s integrated, technology-enabled OntrakTM programs, a critical component of the PRE platform, are designed to provide healthcare solutions to members with behavioral conditions that cause or exacerbate chronic medical conditions such as diabetes, hypertension, coronary artery disease, chronic obstructive pulmonary disease, and congestive heart failure, which result in high medical costs. Ontrak has a unique ability to engage these members, who do not otherwise seek behavioral healthcare, leveraging proprietary enrollment capabilities built on deep insights into the drivers of care avoidance. Ontrak integrates evidence-based psychosocial and medical interventions delivered either in-person or via telehealth, along with care coaching and in-market Community Care Coordinators who address the social and environmental determinants of health, including loneliness. The Company’s programs seek to improve member health and deliver validated cost savings to healthcare payors.
Basis of Presentation
The accompanying condensed consolidated financial statements include Ontrak, Inc. and its wholly-owned subsidiaries and variable interest entities (VIEs). The accompanying condensed consolidated financial statements for Ontrak, Inc. have been prepared in accordance with generally accepted accounting principles in the United States of America (“GAAP”) and instructions to Form 10-Q and Article 10 of Regulation S-X. All intercompany balances and transactions have been eliminated in consolidation. Certain information and note disclosures normally included in the annual consolidated financial statements prepared in accordance with GAAP have been condensed or omitted pursuant to such rules and regulations. In the opinion of management, the condensed financial statements included all adjustments (consisting of normal recurring adjustments) necessary for the fair presentation of the interim periods presented. Interim results are not necessarily indicative of the results that may be expected for any other interim period or for the entire fiscal year. The accompanying unaudited financial information should be read in conjunction with the audited financial statements and the notes thereto included in the most recent Annual Report on Form 10-K for the year-ended December 31, 2020, filed with the Securities and Exchange Commission ("SEC"), from which the consolidated balance sheet as of December 31, 2020 has been derived. The Company operates as one segment. Certain prior period amounts reported in condensed consolidated financial statements and notes have been reclassified to conform to current period presentation.
As of September 30, 2021, cash and restricted cash was $84.8 million and working capital was $82.8 million. For the nine months ended September 30, 2021, average monthly cash burn rate was $1.2 million. The Company will continue to incur negative cash flows and operating losses for the next twelve months as it continues to reinvest into the development of its technology and growth of its operations. The Company expects its current cash resources to cover its operations through at least the next twelve months. However, delays in cash collections, revenue, or unforeseen expenditures could impact this estimate.
The Company’s ability to fund ongoing operations is dependent on several factors. The Company aims to increase the number of members that are eligible for its solutions by signing new contracts and identifying more eligible members in existing contracts. Additionally, the Company’s funding is dependent upon the success of management’s plan to increase revenue and control expenses. The Company provides services to commercial (employer funded), managed Medicare Advantage, and managed Medicaid and dual eligible (Medicare and Medicaid) populations. The Company generates fees from its launched programs and expects to increase enrollment and fees in the near future.
8
Management’s Plans
Historically, we have seen net losses, net loss from operations and negative cash flow from operating activities as we experienced rapid growth, while more recently our results have been negatively impacted by customer terminations. The accompanying financial statements do not reflect any adjustments that might result if we were unable to continue as a going concern. As we continue to grow and execute on our strategy, we have entered into contracts for additional revenue-generating health plan customers and expanded our Ontrak program within existing health plan customers, as well as completed equity and debt financings totaling $87 million and $10 million, respectively, in 2020. To support increased demand for services, we have historically invested and will continue to invest in additional headcount, as needed, and invest in enhancements to technology needed to support the anticipated growth. Additional management plans include adding new customers, increasing the effective outreach pool as well as improving our current enrollment rate. We will continue to explore ways to increase operational efficiencies and maximizing return on investments for our customers.
We plan to continue to add new customers and believe we are able to fully scale our operations to service the contracts and future enrollment providing leverage in these investments that will generate positive cash flow in the near future. We believe we will have enough capital to cover expenses through the next twelve months and we will continue to monitor liquidity. If we add more health plans than budgeted, increase the size of the outreach pool by more than we anticipate, decide to invest in new products or seek out additional growth opportunities, or in order to provide liquidity for an extended period of losses, we would consider financing these options with either a debt or equity financing.
Recently Adopted Accounting Standards
In March 2020, the Financial Accounting Standards Board ("FASB") issued Accounting Standard Update No. 2020-04, Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on Financial Reporting ("ASU 2020-04"), which provides optional expedients and exceptions to accounting for contracts, hedging relationships and other transactions affected by reference rate reform if certain criteria are met. In January 2021, the FASB issued ASU 2021-01, "Reference Rate Reform (Topic 848): Scope" which clarifies that certain optional expedients and exceptions in Topic 848 for contract modifications and hedge accounting apply to derivatives that are affected by the discounting transition. ASU 2020-04 is effective for all entities beginning on March 12, 2020 and may be applied prospectively to contract modifications entered through December 31, 2022. ASU 2021-01 is effective beginning on January 7, 2021 and may be applied retrospectively or prospectively to contract modifications entered through December 31, 2022. The adoption of ASU 2020-04 and ASU 2021-01 as of the respective effective beginning dates did not have a material effect on our consolidated financial statements.
In December 2019, the FASB issued ASU No. 2019-12, "Simplifying the Accounting for Income Taxes" ("ASU 2019-12"), which enhances and simplifies various aspects of income tax accounting guidance. The guidance is effective for the Company in the first quarter of 2021, although early adoption is permitted. The adoption of ASU 2019-12 on January 1, 2021 did not have a material effect on our consolidated financial statements.
Recently Issued Accounting Pronouncements
In May 2021, the FASB issued ASU No. 2021-04, "Earnings Per Share (Topic 260), Debt-Modifications and Extinguishments (Subtopic 470-50), Compensation-Stock Compensation (Topic 718), and Derivatives and Hedging-Contracts in Entity’s Own Equity (Subtopic 815-40): Issuer’s Accounting for Certain Modifications or Exchanges of Freestanding Equity-Classified Written Call Options ("ASU 2021-04"), to clarify and reduce diversity in an issuer’s accounting for modifications or exchanges of freestanding equity-classified written call options (for example, warrants) that remain equity classified after modification or exchange. The amendments in ASU 2021-04 are effective for fiscal years beginning after December 15, 2021, and interim periods with fiscal years beginning after December 15, 2021. Early adoption is permitted, including adoption in an interim period. The Company is currently evaluating the impact of adoption of ASU 2021-04 on its consolidated financial statements and related footnote disclosures.
9
In October 2020, the FASB issued ASU No. 2020-10, "Codification Improvements" ("ASU 2020-10"), which includes amendments to improve consistency of disclosures by ensuring that all guidance that require disclosures or provides an option for an entity to provide information in the notes to the financial statement is codified in the disclosure section of the codification. ASU 2020-10 is effective for public companies, other than smaller reporting companies, for fiscal years beginning after December 15, 2020. For all other entities, ASU 2020-10 is effective for fiscal years beginning after December 15, 2021, and interim periods beginning after December 15, 2022. The Company is currently evaluating the impact of adoption of ASU 2020-10 on its consolidated financial statements and related footnote disclosures.
In August 2020, the FASB issued ASU No. 2020-06, “Debt - Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging - Contracts in Entity’s Own Equity (Subtopic 815-40)" ("ASU 2020-06"). ASU 2020-06 modifies and simplifies accounting for convertible instruments, and eliminates certain separation models that require separating embedded conversion features from convertible instruments. ASU 2020-06 also addresses how convertible instruments are accounted for in the diluted earnings per share calculation. ASU 2020-06 is effective for fiscal years beginning after December 15, 2021, including interim periods within those fiscal years. Early adoption is permitted, but no earlier the fiscal year beginning after December 15, 2020. The Company is currently evaluating the impact of adoption of ASU 2020-06 on its consolidated financial statements and related footnote disclosures.
In June 2016, the FASB issued ASU No. 2016-13, “Financial Instruments - Credit Losses (Topic 326) - Measurement of Credit Losses on Financial Instruments” (“ASU 2016-13”), which requires recognition of an estimate of lifetime expected credit losses as an allowance. For companies eligible to be smaller reporting company as defined by the Securities and Exchange Commission (“SEC”), ASU 2016-13 is effective for annual reporting periods beginning after December 15, 2022, including interim periods within those annual periods. The Company is currently evaluating the impact of adoption of ASU 2016-13 on its consolidated financial statements and related footnote disclosures.
10
Note 2. Restricted Cash
The following table provides a reconciliation of cash, cash equivalents and restricted cash total as presented in the condensed consolidated statement of cash flows for the periods presented (in thousands):
| September 30, 2021 | December 31, 2020 | ||||||||||
| Cash and cash equivalents | $ | 75,303 | $ | 86,907 | |||||||
| Restricted cash - current: | |||||||||||
| Dividend payments on preferred stock | 8,954 | 8,954 | |||||||||
| Cash held in escrow account (1) | — | 173 | |||||||||
| Subtotal - Restricted cash - current | 8,954 | 9,127 | |||||||||
| Restricted cash - long term: | |||||||||||
| Dividend payments on preferred stock | — | 6,716 | |||||||||
| Letter of credit (2) | 410 | 410 | |||||||||
| Cash required per note agreement (3) | 100 | 50 | |||||||||
| Subtotal - Restricted cash - long term | 510 | 7,176 | |||||||||
| Cash, cash equivalents and restricted cash | $ | 84,767 | $ | 103,210 | |||||||
____________
(1) Related to cash held in escrow as part of the LifeDojo acquisition.
(2) LOC required as part of our headquarters office lease.
(3) Cash required to be maintained in our accounts per the 2024 Note agreement.
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Note 3. Accounts Receivable and Revenue Concentration
The following table is a summary of concentration of credit risk by customer revenues as a percentage of our total revenue:
Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||||||||||||||
| Percentage of Revenue | 2021 | 2020 | 2021 | 2020 | |||||||||||||||||||||||||||||||
| Customer A | 50.8 | % | 13.6 | % | 46.5 | % | 15.1 | % | |||||||||||||||||||||||||||
| Customer B | 17.7 | 63.9 | 31.3 | 58.0 | |||||||||||||||||||||||||||||||
| Customer C | 12.3 | 7.8 | 10.3 | 8.4 | |||||||||||||||||||||||||||||||
| Customer D | 7.4 | 2.7 | 4.0 | 3.1 | |||||||||||||||||||||||||||||||
| Customer E | 6.2 | 9.6 | 4.3 | 11.9 | |||||||||||||||||||||||||||||||
| Remaining customers | 5.6 | 2.4 | 3.6 | 3.5 | |||||||||||||||||||||||||||||||
| 100.0 | % | 100.0 | % | 100.0 | % | 100.0 | % | ||||||||||||||||||||||||||||
The following table is a summary of concentration of credit risk by customer accounts receivables as a percentage of our total accounts receivable:
| Percentage of Accounts Receivable | September 30, 2021 | December 31, 2020 | |||||||||
| Customer C | 35.5 | % | 0.4 | % | |||||||
| Customer B | 28.3 | 13.5 | |||||||||
| Customer D | 9.2 | — | |||||||||
| Customer E | 8.1 | — | |||||||||
| Customer A | 0.6 | 85.9 | |||||||||
| Remaining customers | 18.3 | 0.2 | |||||||||
| 100.0 | % | 100.0 | % | ||||||||
The Company applies the specific identification method for assessing provision for doubtful accounts. There was no bad debt expense in each of the three and nine months ended September 30, 2021 and 2020.
On February 26, 2021, the Company received a termination notice from Customer B and working with this customer have determined the participation of the program would not continue past December 31, 2021. As a result of this termination notice, the Company’s management assessed various options and deemed it prudent to initiate a workforce reduction plan to effectively align its resources and manage its operating costs, resulting in reduction of 35% of full time positions. We estimated an updated total of one-time costs of approximately $1.3 million of termination benefits to the impacted employees. During the three and nine months ended September 30, 2021, we incurred $0.05 million and $1.3 million, respectively, of severance and related benefit costs recorded as part of "General and administrative" expenses on our condensed consolidated statement of operations. As of September 30, 2021, we paid a total of $1.2 million of the total $1.3 million of termination benefits incurred through September 30, 2021 and we had $0.1 million of accrued termination related costs on our condensed consolidated balance sheet.
On August 18, 2021, the Company received a termination notice from Customer A of their intent not to continue the program past December 31, 2021.
In September 2021, the Company agreed to a contract modification with a current customer to credit certain fees in order to align with the customer's program spend, which was recorded as a cumulative adjustment, and was not considered to be significant for the three months ended September 30, 2021.
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Note 4. Property and Equipment
Property and equipment consisted of the following (in thousands):
| September 30, | December 31, | ||||||||||
| 2021 | 2020 | ||||||||||
| Software | $ | 4,206 | $ | 2,441 | |||||||
| Computers and equipment | 902 | 893 | |||||||||
| ROU assets - finance lease | 934 | 934 | |||||||||
| Leasehold improvements | 17 | 17 | |||||||||
| Software development in progress | 2,248 | 5 | |||||||||
| Subtotal | 8,307 | 4,290 | |||||||||
| Less: Accumulated depreciation and amortization | 2,833 | 2,017 | |||||||||
| Property and equipment, net | $ | 5,474 | $ | 2,273 | |||||||
Total depreciation and amortization expense relating to property and equipment presented above was $0.4 million and $0.2 million for the three months ended September 30, 2021 and 2020, respectively, and $0.9 million and $0.2 million for the nine months ended September 30, 2021 and 2020, respectively.
Capitalized Internal Use Software Costs
During the three and nine months ended September 30, 2021, we capitalized $1.4 million and $4.0 million, respectively, of costs relating to development of internal use software, and recorded $0.2 million and $0.5 million, respectively, of amortization expense relating to capitalized internal use software.
During the three and nine months ended September 30, 2020, we capitalized $0.4 million and $0.9 million, respectively, of costs relating to development of internal use software and recorded $0.1 million and $0.1 million, respectively, of amortization expense relating to capitalized internal use software.
Note 5. Goodwill and Intangible Assets
Goodwill
The carrying amount of indefinite-lived goodwill was as follows (in thousands):
| Goodwill | |||||
| Balance at December 31, 2020 | $ | 5,727 | |||
| Adjustment related to acquisition of LifeDojo | (14) | ||||
| Balance at September 30, 2021 | $ | 5,713 | |||
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Intangible Assets
The following table sets forth amounts recorded for intangible assets subject to amortization (in thousands):
| At September 30, 2021 | At December 31, 2020 | |||||||||||||||||||||||||||||||||||||||||||
| Weighted Average Estimated Useful Life (years) | Gross Value | Accumulated Amortization | Net Carrying Value | Gross Value | Accumulated Amortization | Net Carrying Value | ||||||||||||||||||||||||||||||||||||||
| Acquired software technology | 3 | $ | 3,500 | $ | (1,069) | $ | 2,431 | $ | 3,500 | $ | (194) | $ | 3,306 | |||||||||||||||||||||||||||||||
| Customer relationships | 5 | 270 | (50) | 220 | 270 | (15) | 255 | |||||||||||||||||||||||||||||||||||||
| Total | $ | 3,770 | $ | (1,119) | $ | 2,651 | $ | 3,770 | $ | (209) | $ | 3,561 | ||||||||||||||||||||||||||||||||
Amortization expense for intangible assets presented above was $0.3 million and $0.9 million for the three and nine months ended September 30, 2021, respectively. There was no intangible assets amortization expense for the three and nine months ended September 30, 2020.
At September 30, 2021, estimated amortization expense for intangible assets for each of the five years thereafter was as follows (in thousands):
| Remainder of 2021 | $ | 305 | |||
| 2022 | 1,221 | ||||
| 2023 | 1,026 | ||||
| 2024 | 54 | ||||
| 2025 | 45 | ||||
| Total | $ | 2,651 | |||
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Note 6. Common Stock and Preferred Stock
Net Loss Per Common Share
Basic net loss per common share is computed by dividing net loss attributable to common shareholders by the weighted-average number of shares of common stock outstanding during the period. Diluted net loss per common share is computed by giving effect to all potential shares of common stock, preferred stock and outstanding stock options and warrants, to the extent dilutive. Basic and diluted net loss per common share was the same for each period presented below as the inclusion of any such potential shares of common stock would have been anti-dilutive.
Basic and diluted net loss per common share (in thousands, except per share amounts) was as follows:
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2021 | 2020 | 2021 | 2020 | ||||||||||||||||||||
| Net loss | $ | (7,883) | $ | (5,673) | $ | (17,093) | $ | (19,481) | |||||||||||||||
| Dividends on preferred stock - declared and undeclared | (2,239) | (464) | (6,716) | (464) | |||||||||||||||||||
| Net loss attributable to common stockholders | $ | (10,122) | $ | (6,137) | $ | (23,809) | $ | (19,945) | |||||||||||||||
| Weighted-average shares of common stock outstanding | 18,915 | 17,280 | 18,236 | 16,990 | |||||||||||||||||||
| Net loss per common share - basic and diluted | $ | (0.54) | $ | (0.36) | $ | (1.31) | $ | (1.17) | |||||||||||||||
The following common equivalent shares as of September 30, 2021 and 2020, issuable upon exercise of stock options and warrants, have been excluded from the diluted earnings per share calculation as their effect was anti-dilutive:
| September 30, | |||||||||||
| 2021 | 2020 | ||||||||||
| Warrants to purchase common stock | 49,803 | 1,465,927 | |||||||||
| Options to purchase common stock | 3,486,750 | 3,524,625 | |||||||||
| Total | 3,536,553 | 4,990,552 | |||||||||
Preferred Stock
In August 2020, we completed the offering of 1,700,000 shares of 9.50% Series A Cumulative Perpetual Preferred Stock (the "Series A Preferred Stock") and in September 2020, we completed the closing of the underwriters' full exercise of the over-allotment option of 255,000 additional shares of Series A Preferred Stock, resulting in aggregate gross proceeds of $48.9 million to the Company (or $45.1 million net of underwriting fees and other offering expenses). In mid-September 2020, we began an at-the-market ("ATM") offering of the Series A Preferred Stock through a designated broker for up to 2,000,000 shares, of which we sold 5,027 shares in November 2020. In December 2020, we terminated the ATM offering and began an underwritten offering of the Series A Preferred Stock, under which we completed the offering of 1,730,000 shares of Series A Preferred Stock as well as the issuance of 80,238 shares of Series A Preferred Stock under the over-allotment option, resulting in total gross proceeds, including the proceeds of the ATM offering, of $44.9 million (or $41.4 million net of underwriting fees and other offering expenses). The Series A Preferred Stock is listed on the Nasdaq Global Market under the symbol "OTRKP." The Company, generally, may not redeem the Series A Preferred Stock until August 25, 2025, except upon the occurrence of a Delisting Event or Change of Control (as defined in the Certificate of Designations establishing the Series A Preferred Stock), and on and after August 25, 2025, the Company may, at its option, redeem the Series A Preferred Stock, in whole, at any time, or in part, from time to time, for cash at a redemption price of $25.00 per share, plus any accrued and unpaid dividends. The Series A Preferred Stock has no maturity date and will remain outstanding indefinitely unless redeemed by the Company or exchanged for shares of common stock in connection with a Delisting Event or Change of Control. Holders of Series A Preferred Stock generally have no
15
voting rights, but will have limited voting rights if the Company fails to pay dividends for six or more quarters, whether or not declared or consecutive) and in certain other events.
Holders of Series A Preferred Stock of record at the close of business of each respective record date (February 15, May 15, August 15 and November 15) are entitled to receive, when, as and if declared by our Board of Directors, out of funds legally available for the payment of dividends, cumulative cash dividends at the rate of 9.50% per annum of the $25.00 per share liquidation preference (equivalent to $2.375 per annum per share). Dividends, if and when declared by our Board of Directors, are payable quarterly in arrears, every February 28, May 30, August 31, and November 30, as applicable, beginning on or about November 30, 2020.
On February 5, 2021, May 5, 2021 and August 4, 2021, our Board of Directors declared the second, third and fourth quarterly dividends, respectively, on the Company's Series A Preferred Stock for shareholders of record as of the close of business on February 15, 2021, May 15, 2021 and August 15, 2021, respectively. Each quarterly cash dividend equaled $0.593750 per share, at 9.50% per annum of liquidation preference of $25.00 per share. As such, we paid cash dividend of $2.2 million each on February 28, 2021, May 30, 2021 and August 31, 2021. At September 30, 2021, we had undeclared dividends of $0.7 million.
Note 7. Stock-Based Compensation
The Company's 2017 Stock Incentive Plan (the “2017 Plan”) and 2010 Stock Incentive Plan (the “2010 Plan”) provide for the issuance of 5,082,955 shares of the Company's common stock. The Company has granted stock options to executive officers, employees, members of the Company's board of directors, and certain outside consultants and restricted stock units ("RSUs") to employees. The terms and conditions upon which options become exercisable vary among grants; however, option rights expire no later than ten years from the date of grant and employee and Board of Director awards generally vest over to four years on a straight-line basis. The terms and conditions upon which RSUs vest vary among grants; however, RSUs generally vest over to five years on a straight-line basis. As of September 30, 2021, the Company had 3,628,250 stock options and RSUs outstanding and 97,961 shares reserved for future awards.
Stock-based compensation expense was $2.9 million and $1.8 million for the three months ended September 30, 2021 and 2020, respectively, and $8.9 million and $5.8 million for the nine months ended September 30, 2021 and 2020, respectively. The Company issued $0.4 million of common stock to one of the Company's executives during the quarter ended March 31, 2020 and it has been included in stock-based compensation expense for the nine months ended September 30, 2020.
The assumptions used in the Black-Scholes option-pricing model were as follows:
| Nine Months Ended September 30, 2021 | |||||
| Volatility | 79.0% - 82.0% | ||||
| Risk-free interest rate | 0.19% - 0.98% | ||||
| Expected life (in years) | 2.75 - 6.08 | ||||
| Dividend yield | 0 | % | |||
The expected volatility assumptions have been based on the historical and expected volatility of our stock and comparable companies, measured over a period generally commensurate with the expected term or acceptable period to determine reasonable volatility. The weighted average expected option term for the nine months ended September 30, 2021 reflects the application of the simplified method prescribed in SEC Staff Accounting Bulletin (“SAB”) No. 107 (as amended by SAB 110), which defines the life as the average of the contractual term of the options and the weighted average vesting period for all option tranches.
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Stock Options - Employees and Directors
A summary of stock option activity for employees, directors and consultants is as follows:
Number of Shares | Weighted Average Exercise Price | ||||||||||
| Outstanding as of December 31, 2020 | 3,616,314 | $ | 14.66 | ||||||||
| Granted | 738,628 | 24.08 | |||||||||
| Exercised | (395,181) | 14.13 | |||||||||
| Forfeited | (472,740) | 14.27 | |||||||||
| Expired | (271) | 48.00 | |||||||||
| Outstanding as of September 30, 2021 | 3,486,750 | 16.77 | |||||||||
| Options vested and exercisable as of September 30, 2021 | 1,115,549 | $ | 14.51 | ||||||||
As of September 30, 2021, there was $21.5 million of total unrecognized compensation cost related to non-vested stock compensation arrangements granted to employees, directors and consultants under the 2017 Amended Plan, which is expected to be recognized over a weighted-average period of approximately 1.84 years.
Restricted Stock Units - Employees
The Company estimates the fair value of RSUs based on the closing price of our common stock on the date of grant. The following table summarizes our RSU award activity issued under the 2017 Plan:
| Restricted Stock Units | Weighted- Average Grant Date Fair Value | ||||||||||
| Non-vested at December 31, 2020 | 30,000 | $ | 51.98 | ||||||||
| Granted | 114,000 | 29.55 | |||||||||
| Forfeited | (2,500) | 33.41 | |||||||||
| Non-vested at September 30, 2021 | 141,500 | 34.24 | |||||||||
As of September 30, 2021, there was $4.3 million of unrecognized compensation cost related to unvested outstanding RSUs. We expect to recognize these costs over a weighted average period of 3.96 years.
Warrants - Non-employees
The Company has also granted warrants to purchase common stock that have been approved by our Board of Directors. A summary of warrants activity was as follows:
Number of Warrants | Weighted Average Exercise Price | ||||||||||
| Outstanding as of December 31, 2020 | 1,465,927 | $ | 6.02 | ||||||||
| Granted | — | — | |||||||||
| Exercised (1) | (1,402,866) | 5.77 | |||||||||
| Expired | (13,258) | 4.80 | |||||||||
| Outstanding as of September 30, 2021 | 49,803 | 13.51 | |||||||||
| Warrants exercisable as of September 30, 2021 | 49,803 | 13.51 | |||||||||
____________
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(1) Included in total number of warrants exercised are 218,225 shares that were net settled at the election of the warrant holders during the nine months ended September 30, 2021.
Performance-Based and Market-Based Awards
The Company’s Compensation Committee designed a compensation structure to align the compensation level of the Executive Chairman to the performance of the Company through the issuance of market-based stock options. The market-based options vest upon the Company’s stock price reaching a certain price at a specific performance period and the total amount of compensation expense recognized is based on a Monte Carlo simulation that factors in the probability of the award vesting. The following table summarizes the Company’s outstanding awards under this structure:
| Grant Date | Performance Measures | Vesting Term | Performance Period | # of Shares | Exercise Price | |||||||||||||||||||||||||||
| December 2017 | Weighted Average Price of our common stock is $15.00 for at least twenty trading days within a period of thirty consecutive trading days ending on the trading day prior to January 1, 2023. | Fully vest on January 1, 2023 | January 1, 2023 | 642,307 | $ | 7.50 | ||||||||||||||||||||||||||
| August 2018 | Weighted Average Price of our common stock is $15.00 for at least twenty trading days within a period of thirty consecutive trading days ending on the trading day prior to January 1, 2023. | Fully vest on January 1, 2023 | January 1, 2023 | 397,693 | $ | 7.50 | ||||||||||||||||||||||||||
During the quarter ended March 31, 2020, the Company amended the option agreement of one of the Company's former executives to vest additional options previously forfeited and extend the period to exercise, resulting in $0.6 million of additional stock-based compensation expense, which was included in stock-based compensation expense for the nine months ended September 30, 2020.
Note 8. Leases
The Company determines whether an arrangement is a lease, or contains a lease, at inception and recognizes right-of-use assets and lease liabilities, initially measured at present value of the lease payments, on our balance sheet and classifies the leases as either operating or financing leases. The Company leases office space for our corporate headquarters in Santa Monica, California, and an office space in Rosemont, Illinois, which are accounted for as operating leases and various computer equipment used in the operation of our business, which are accounted for as finance leases. The operating lease agreements include a total of 10,445 square feet of office space for lease terms ranging from 26 months to 60 months. The finance leases are generally for 36 month terms.
The Company’s operating leases do not require any contingent rental payments, impose any financial restrictions, or contain any residual value guarantees. The lease includes renewal options and escalation clauses. The renewal options have not been included in the calculation of the operating lease liability and right-of-use asset as the Company is not reasonably certain to exercise the options. Variable expenses generally represent the Company’s share of the landlord’s operating expenses.
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Quantitative information for our leases is as follows (in thousands):
| Condensed Consolidated Balance Sheets | Balance Sheet Classification | September 30, 2021 | December 31, 2020 | |||||||||||
| Assets | ||||||||||||||
| Operating lease assets | "Operating lease right-of-use-assets" | $ | 1,692 | $ | 1,959 | |||||||||
| Finance lease assets | 480 | 721 | ||||||||||||
| Total lease assets | $ | 2,172 | $ | 2,680 | ||||||||||
| Liabilities | ||||||||||||||
| Current | ||||||||||||||
| Operating lease liabilities | "Current portion of operating lease liabilities" | $ | 546 | $ | 434 | |||||||||
| Finance lease liabilities | 309 | 321 | ||||||||||||
| Non-current | ||||||||||||||
| Operating lease liabilities | "Long-term operating lease liabilities" | 1,082 | 1,403 | |||||||||||
| Finance lease liabilities | "Long-term finance lease liabilities" | 192 | 418 | |||||||||||
| Total lease liabilities | $ | 2,129 | $ | 2,576 | ||||||||||
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
Condensed Consolidated Statements of Operations | 2021 | 2020 | 2021 | 2020 | |||||||||||||||||||
| Operating lease expense | $ | 183 | $ | 166 | $ | 537 | $ | 497 | |||||||||||||||
| Short-term lease rent expense | 10 | 23 | 57 | 75 | |||||||||||||||||||
| Variable lease expense | 13 | 6 | 31 | 26 | |||||||||||||||||||
| Total rent expense | $ | 206 | $ | 195 | $ | 625 | $ | 598 | |||||||||||||||
| Finance lease expense | |||||||||||||||||||||||
| Amortization of leased assets | $ | 81 | $ | 63 | $ | 240 | $ | 144 | |||||||||||||||
| Interest on lease liabilities | 10 | 8 | 34 | 14 | |||||||||||||||||||
| Total | $ | 91 | $ | 71 | $ | 274 | $ | 158 | |||||||||||||||
| Nine Months Ended September 30, | |||||||||||
| Condensed Consolidated Statements of Cash Flows | 2021 | 2020 | |||||||||
| Cash paid for amounts included in the measurement of lease liabilities: | |||||||||||
| Operating cash flows from operating leases | $ | 478 | $ | 432 | |||||||
| Financing cash flows from finance leases | 243 | 126 | |||||||||
19
| Other Information | September 30, 2021 | December 31, 2020 | |||||||||
| Weighted-average remaining lease term (years) | |||||||||||
| Operating leases | 2.7 | 3.8 | |||||||||
| Financing leases | 1.7 | 2.4 | |||||||||
| Weighted-average discount rate | |||||||||||
| Operating leases | 10.39 | % | 10.15 | % | |||||||
| Finance leases | 11.25 | % | 10.88 | % | |||||||
The following table sets forth maturities of our lease liabilities (in thousands):
| September 30, 2021 | |||||||||||
| Operating Leases | Financing Leases | Total | |||||||||
| Remainder of 2021 | $ | 171 | $ | 91 | $ | 262 | |||||
| 2022 | 696 | 302 | 998 | ||||||||
| 2023 | 674 | 139 | 813 | ||||||||
| 2024 | 332 | — | 332 | ||||||||
| Total lease payments | 1,873 | 532 | 2,405 | ||||||||
| Less: imputed interest | (245) | (31) | (276) | ||||||||
| Present value of lease liabilities | 1,628 | 501 | 2,129 | ||||||||
| Less: current portion | (546) | (309) | (855) | ||||||||
| Lease liabilities, non-current | $ | 1,082 | $ | 192 | $ | 1,274 | |||||
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Note 9. Debt
2024 Notes
The Company is party to a Note Purchase Agreement dated September 24, 2019 (the “Note Agreement”) with Goldman Sachs Specialty Lending Group, L.P. and any other purchasers party thereto from time to time (collectively, the “Holders”) (the "Amended Note Agreement"), as amended, pursuant to which the Company initially issued $35.0 million aggregate principal amount of senior secured notes (the "Initial 2024 Notes"). In August 2020, pursuant to a Second Amendment to the Note Purchase Agreement (the "Second Amendment"), the Company issued an additional $10.0 million principal amount of senior secured notes as provided under the additional note purchase commitment of the Note Agreement (together with the Initial 2024 Notes, the "2024 Notes"). The Second Amendment included changes in certain definitions in the Note Agreement intended to permit the Company to issue the Series A Preferred Stock in an amount not to exceed $50 million and to pay dividends thereon under specified conditions, including a waiver of the mandatory prepayment of the 2024 Notes with the proceeds of the Series A Preferred Stock offering. The Second Amendment also modified the Leverage Ratio covenant, Consolidated Adjusted EBITDA covenant, Minimum Consolidated Liquidity covenant and Minimum Revenue covenant providing increased financial flexibility to the Company. In September 2020, the Company and the Holders entered into a Third Amendment to the Note Purchase Agreement, which increased the maximum amount allowed for issuances of the Series A Preferred Stock to $100 million. In late September 2020, the Company and the Holders entered into a Fourth Amendment to the Note Purchase Agreement, which changed certain definitions and covenants in the Note Agreement primarily intended to reduce the Company’s information reporting obligations to the Holders under specified conditions. The Company was subsequently notified on March 3, 2021, that pursuant to Section C of the Fourth Amendment to the Note Purchase Agreement, the Collateral Agent rescinded all amendments under the Fourth Amendment and the Fourth Amendment immediately ceased to be effective and all provisions amended by the Fourth Amendment reverted to their respective formulations prior to the execution of the Fourth Amendment. In December 2020, the Company and the Holders entered into a Fifth Amendment to the Note Purchase Agreement, which increased the maximum amount allowed for issuances of the Series A Preferred Stock to $125 million. In August, 2021, the Company and the Holders entered into a Sixth Amendment to the Note Purchase Agreement (the "Sixth Amendment"), which included changes to redefine certain definitions and covenants, including changes to Minimum Consolidated Liquidity, Consolidated Adjusted EBITDA, the Leverage Ratio, the Fixed Charge Coverage Ratio and elimination of Minimum Revenue, in the Note Agreement primarily intended to increase the Company’s financial flexibility.
The 2024 Notes bear interest, based on the Company's election, at either a floating rate plus an applicable margin based on cash interest payments or a floating rate plus a slightly higher applicable margin based on interest payment in kind. The applicable margins are subject to stepdowns, in each case, following the achievement of certain financial ratios. The LIBOR index is expected to be discontinued by the end of calendar year 2021. The terms of the Note Agreement allow for a replacement rate if the LIBOR index is discontinued. At September 30, 2021, the effective weighted average annual interest rate applicable to the outstanding 2024 Notes was 14.25%. The entire principal amount of the 2024 Notes is due and payable on the fifth anniversary of the Note Agreement (September 24, 2024) unless earlier redeemed upon the occurrence of certain mandatory prepayment events, including 50% of excess cash flow, asset sales and the amount by which total debt exceeds an applicable leverage multiple. The principal amount of the 2024 Notes increased by $3.5 million in the form of payment in kind of the interest component during the nine months ended September 30, 2020.
The Amended Note Agreement contains customary covenants, including, among others, covenants that restrict the Company’s ability to incur debt, grant liens, make certain investments and acquisitions, pay certain dividends, repurchase equity interests, repay certain debt, amend certain contracts, enter into affiliate transactions and asset sales or make certain equity issuances, and covenants that require the Company to, among other things, provide annual, quarterly and monthly financial statements, together with related compliance certificates if and when requested by Holders, maintain its property in good repair, maintain insurance and comply with applicable laws. The Amended Note Agreement also includes covenants with respect to the Company’s maintenance of certain financial ratios, including a fixed charge coverage ratio, leverage ratio and consolidated liquidity as well as minimum levels of consolidated adjusted EBITDA. The Amended Note Agreement also contains customary events of default, including, among others, payment default, bankruptcy events, cross-default, breaches of covenants and representations and warranties, change of control, judgment defaults and an ownership change within the meaning of Section 382 of the Internal Revenue Code. In the case of an event of default, the Holder may, among other remedies, accelerate the payment of all obligations under the 2024 Notes and all assets of the Company serves as collateral. Any prepayment of the 2024 Notes must be accompanied by a yield maintenance premium and on or prior to the third anniversary of the date of the Note Agreement must be accompanied by a prepayment premium. The Company was in compliance with all of its debt covenants as of September 30, 2021.
21
In accounting for the issuance of the 2024 Notes, the Company separated the 2024 Notes into liability and equity components. The fair value of the liability component was estimated using an interest rate for debt with terms similar to the 2024 Notes. The carrying amount of the equity component was calculated by measuring the fair value based on the Black-Scholes model. The gross proceeds from the transaction was allocated between liability and equity based on the proportionate value. The debt discount is accreted to interest expense over the term of the 2024 Notes using the interest method. The equity component is not re-measured as long as it continues to meet the conditions for equity classification.
The assumptions used in the Black-Scholes option-pricing model at inception remain unchanged and were determined as follows:
| Volatility | 98.01 | % | |||
| Risk-free interest rate | 1.58 | % | |||
| Expected life (in years) | 7 | ||||
| Dividend yield | 0 % | ||||
The net carrying amounts of the liability components consists of the following (in thousands):
| September 30, 2021 | December 31, 2020 | ||||||||||
| Principal | $ | 50,001 | $ | 50,001 | |||||||
| Less: debt discount | (3,648) | (4,282) | |||||||||
Net carrying amount | $ | 46,353 | $ | 45,719 | |||||||
The following table presents the interest expense recognized related to the 2024 Notes (in thousands):
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2021 | 2020 | 2021 | 2020 | ||||||||||||||||||||
| Contractual interest expense | $ | 1,821 | $ | 1,631 | $ | 5,403 | $ | 4,595 | |||||||||||||||
| Accretion of debt discount | 224 | 183 | 635 | 556 | |||||||||||||||||||
| Total interest expense | $ | 2,045 | $ | 1,814 | $ | 6,038 | $ | 5,151 | |||||||||||||||
Other
In August 2020, the Company financed a portion of its insurance premiums totaling $0.3 million at an annual effective rate of 8.25%, payable in ten equal monthly installments which began on September 1, 2020 and a down payment of $0.1 million at inception. In November 2020, the Company financed $3.0 million of insurance premiums at an annual effective rate of 4.95%, payable in ten equal monthly installments beginning on December 8, 2020 and a down payment of $0.8 million at inception. At September 30, 2021, there was no outstanding balance under these insurance financing agreements.
In May 2021, LifeDojo, Inc., the Company's wholly-owned subsidiary acquired in October 2020, received notification that its $0.2 million of PPP loan has been fully forgiven and as such, the full amount of $0.2 million has been recognized as a gain as a component of "Other expense, net" in our condensed consolidated statement of operations for the nine months ended September 30, 2021.
Note 10. Fair Value Measurements
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Assets and liabilities recorded at fair value in the condensed consolidated balance sheets are categorized based upon the level of judgment associated with the inputs used to measure fair value. The fair
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value hierarchy distinguishes between (1) market participant assumptions developed based on market data obtained from independent sources (observable inputs) and (2) an entity’s own assumptions about market participant assumptions developed based on the best information available in the circumstances (unobservable inputs). The fair value hierarchy consists of three broad levels, which gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level I) and the lowest priority to unobservable inputs (Level III). The three levels of the fair value hierarchy are described below:
| Level Input | Input Definition | |||||||
Level I | Inputs are unadjusted, quoted prices for identical assets or liabilities in active markets at the measurement date. | |||||||
Level II | Inputs, other than quoted prices included in Level I, that are observable for the asset or liability through corroboration with market data at the measurement date. | |||||||
Level III | Unobservable inputs that reflect management’s best estimate of what market participants would use in pricing the asset or liability at the measurement date. | |||||||
The following tables summarize fair value measurements by level for assets and liabilities measured at fair value on a recurring basis as of the periods presented (in thousands):
| Balance as of September 30, 2021 | |||||||||||||||||||||||
| Level I | Level II | Level III | Total | ||||||||||||||||||||
| Letter of credit (1) | $ | 408 | $ | — | $ | — | $ | 408 | |||||||||||||||
| Total assets | $ | 408 | $ | — | $ | — | $ | 408 | |||||||||||||||
| Contingent consideration (2) | $ | — | $ | — | $ | 1,790 | $ | 1,790 | |||||||||||||||
| Total liabilities | $ | — | $ | — | $ | 1,790 | $ | 1,790 | |||||||||||||||
| Balance as of December 31, 2020 | |||||||||||||||||||||||
| Level I | Level II | Level III | Total | ||||||||||||||||||||
| Letter of credit (1) | $ | 408 | $ | — | $ | — | $ | 408 | |||||||||||||||
| Total assets | $ | 408 | $ | — | $ | — | $ | 408 | |||||||||||||||
| Contingent consideration (2) | $ | — | $ | — | $ | 485 | $ | 485 | |||||||||||||||
| Total liabilities | $ | — | $ | — | $ | 485 | $ | 485 | |||||||||||||||
___________________
(1) $408,000 was included in "Restricted cash - long term" on our condensed consolidated balance sheets as of September 30, 2021 and December 31, 2020.
(2) Contingent consideration was included in "Other accrued liabilities" on our condensed consolidated balance sheets as of September 30, 2021 and December 31, 2020.
Financial instruments classified as Level III in the fair value hierarchy as of September 30, 2021 and December 31, 2020 represent liabilities measured at market value on a recurring basis and include contingent consideration relating to a stock price guarantee provided in an acquisition (see further discussion below regarding this contingent consideration). In accordance with current accounting rules, the contingent consideration liability is being marked-to-market each quarter-end until it is completely settled or expire. The fair value of contingent consideration liability is valued using the Monte Carlo simulation model, using both observable and unobservable inputs and assumptions.
The carrying value of the 2024 Notes is estimated to approximate their fair value as the variable interest rate of the Senior Secured Notes approximates the market rate for debt with similar terms and risk characteristics.
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The fair value measurements using significant Level III inputs, and changes therein, was as follows (in thousands):
| Level III Contingent Consideration | |||||
| Balance as of December 31, 2020 | $ | 485 | |||
| Change in fair value | 1,305 | ||||
| Balance as of September 30, 2021 | $ | 1,790 | |||
The $1.8 million of contingent consideration as of September 30, 2021 relates to a stock price guarantee provided as a part of our acquisition of LifeDojo, Inc. in October 2020. The stock price guarantee is based on a computation, as defined in the merger agreement, in the event the daily closing price per share of our common stock falls below a specified target price of $60 on two consecutive trading days during a six month period beginning on the sixth month anniversary to the twelfth month anniversary of the closing date (measurement period). The contingent consideration amount, if any, is payable within business days following the completion of the measurement period, at the Company's option, in cash or Company's common stock, or any combination thereof.
Note 11. Variable Interest Entities
Generally, an entity is defined as a Variable Interest Entity (“VIE”) under current accounting rules if it either lacks sufficient equity to finance its activities without additional subordinated financial support, or it is structured such that the holders of the voting rights do not substantively participate in the gains and losses of the entity. When determining whether an entity that meets the definition of a business, qualifies for a scope exception from applying VIE guidance, the Company considers whether: (i) it has participated significantly in the design of the entity, (ii) it has provided more than half of the total financial support to the entity, and (iii) substantially all of the activities of the VIE are conducted on its behalf. A VIE is consolidated by its primary beneficiary, the party that has the power to direct the activities that most significantly affect the economics of the VIE and has the right to receive benefits or the obligation to absorb losses of the entity that could be potentially significant to the VIE. The primary beneficiary assessment must be re-evaluated on an ongoing basis.
As discussed under the heading Management Services Agreements (“MSA”) below, the Company has an MSA with a Texas nonprofit health organization (“TIH”) and a California Professional Corporation (“CIH”). Under the MSAs, the equity owners of TIH and CIH have only a nominal equity investment at risk, and the Company absorbs or receives a majority of the entity’s expected losses or benefits. The Company participates significantly in the design of these MSAs. The Company also agrees to provide working capital loans to allow for TIH and CIH to fund their day to day obligations. Substantially all of the activities of TIH and CIH, including its decision making and approvals are conducted for its benefit, as evidenced by the fact that (i) the operations of TIH and CIH are conducted primarily using the Company's licensed network of providers and (ii) under the MSA, the Company agrees to provide and perform all non-medical management and administrative services for the entities. Payment of the Company's management fee by TIH and CIH is subordinate to payments of the other obligations of TIH and CIH, and repayment of the working capital loans is not guaranteed by the equity owner of the affiliated medical group or other third party. Creditors of TIH and CIH do not have recourse to the Company's general credit.
Based on the design of the entity and the lack of sufficient equity to finance its activities without additional working capital loans, the Company has determined that TIH and CIH are VIEs. The Company, as the primary beneficiary, is required to consolidate the VIE entities as it has power and potentially significant interests in the entities. Accordingly, the Company is required to consolidate the assets, liabilities, revenues and expenses of the managed treatment centers.
Management Services Agreements
In April 2018, the Company executed an MSA with TIH and in July 2018, the Company executed an MSA with CIH. Under the MSAs, the Company licenses to TIH and CIH the right to use its proprietary treatment programs and related trademarks, and provides all required day-to-day business management services, including, but not limited to:
•general administrative support services;
•information systems;
•recordkeeping;
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•billing and collection; and
•obtaining and maintaining all federal, state and local licenses, certifications and regulatory permits.
All clinical matters relating to the operation of TIH and CIH and the performance of clinical services through the network of providers shall be the sole and exclusive responsibility of the TIH and CIH Board free of any control or direction from the Company.
TIH pays the Company a monthly fee equal to the aggregate amount of (a) its costs of providing management services (including reasonable overhead allocated to the delivery of its services and including salaries, rent, equipment, and tenant improvements incurred for the benefit of the medical group, provided that any capitalized costs will be amortized over a five-year period), (b) 10%-15% of the foregoing costs, and (c) any performance bonus amount, as determined by TIH at its sole discretion.
CIH pays the Company a monthly fee equal to the aggregate amount of (a) its costs of providing management services (including reasonable overhead allocated to the delivery of its services and including salaries, rent, equipment, and tenant improvements incurred for the benefit of the entity, provided that any capitalized costs will be amortized over a five-year period), and (b) any performance bonus amount, as determined by CIH at its sole discretion.
The Company's condensed consolidated balance sheets include the following assets and liabilities from its TIH and CIH VIEs (in thousands):
| September 30, 2021 | December 31, 2020 | ||||||||||
| Cash and cash equivalents | $ | 623 | $ | 1,206 | |||||||
| Accounts receivable | 420 | — | |||||||||
| Unbilled receivables | 83 | 272 | |||||||||
| Prepaid and other current assets | 20 | 46 | |||||||||
| Total assets | $ | 1,146 | $ | 1,524 | |||||||
| Accounts payable | $ | 9 | $ | 9 | |||||||
| Accrued liabilities | 12 | 234 | |||||||||
| Deferred revenue | 41 | 76 | |||||||||
| Intercompany payable | 1,396 | 1,695 | |||||||||
| Total liabilities | $ | 1,458 | $ | 2,014 | |||||||
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Note 12. Commitments and Contingencies
From time to time, we are subject to various legal proceedings that arise in the normal course of our business activities. As of the date of this Quarterly Report on Form 10-Q, we were not party to any litigation the outcome of which, if determined adversely to us, would individually or in the aggregate be reasonably expected to have a material adverse effect on our results of operations or financial position except for the following:
Loss Contingency
On March 3, 2021, a purported securities class action was filed in the United States District Court for the Central District of California, entitled Farhar v. Ontrak, Inc., Case No. 2:21-cv-01987. On March 19, 2021, another similar lawsuit was filed in the same court, entitled Yildrim v. Ontrak, Inc., Case No. 2:21-cv-02460. On July 14, 2021, the Court consolidated the two actions under the Farhar case (“Consolidated Class Action”), appointed Ibinabo Dick as lead plaintiff, and the Rosen Law Firm as lead counsel. On August 13, 2021, lead plaintiff filed a consolidated amended complaint. In the Consolidated Amended Complaint, lead plaintiff, purportedly on behalf of a putative class of purchasers of Ontrak securities from August 5, 2020 through February 26, 2021, alleges that the Company and Terren S. Peizer, Brandon H. Laverne and Curtis Medeiros, violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78t(a), and Rule 10b-5, 17 C.F.R. § 240.10b-5, promulgated thereunder, by intentionally or recklessly making false and misleading statements and omissions in various press releases, SEC filings and conference calls with investors on August 5, 2020 and November 5, 2020. Specifically, the Consolidated Amended Complaint alleges that the Company was inappropriately billing its largest customer, Aetna, causing Aetna to, in May 2020, shut off its data feed to Ontrak, and, in July 2020, require Ontrak to complete a Corrective Action Plan (“CAP”). Lead plaintiff alleges that defendants: (1) misrepresented to investors that the data feed was shut off in July 2020, and that it was part of Aetna’s standard compliance review of all of its vendors; (2) failed to disclose to investors that Aetna had issued the CAP; and (3) failed to disclose to investors that Ontrak was engaging in inappropriate billing practices. Lead plaintiff seeks certification of a class and monetary damages in an indeterminate amount. On September 13, 2021, defendants filed a motion to dismiss the Consolidated Amended Complaint for failure to state a claim under Federal Rules of Civil Procedure 12(b)(6) and 9(b) and the Private Securities Litigation Reform Act of 1995, 15 U.S.C. §§ 78u-4, et seq. The motion is fully briefed, and the hearing on the motion is set for November 12, 2021, at 1:30 p.m. PT. We believe that the allegations lack merit and intend to defend against the action vigorously.
On August 6, 2021, a purported stockholder derivative complaint was filed in the United States District Court for the Central District of California, entitled Aptor v. Peizer, Case No. 2:21-cv-06371, alleging breach of fiduciary duty on behalf of the Company against Terren S. Peizer, Brandon H. LaVerne, Richard A. Berman, Michael Sherman, Diane Seloff, Robert Rebak, Gustavo Giraldo and Katherine Quinn, and contribution against Terren S. Peizer and Brandon H. LaVerne. On October 6, 2021, a similar shareholder derivative action was filed in the same court, entitled Anderson v. Peizer, Case No. 2:21-cv-07998, for breach of fiduciary duty, abuse of control, unjust enrichment, gross mismanagement and waste of corporate assets against Terren S. Peizer, Brandon H. LaVerne, Curtis Medeiros, Richard A. Berman, Michael Sherman, Edward Zecchini, Diane Seloff, Robert Rebak, Gustavo Giraldo, and Katherine Quinn, and contribution against Terren S. Peizer, Brandon H. LaVerne and Curtis Medeiros. In these actions, plaintiffs allege that the defendants breached their fiduciary duties by allowing or causing the Company to violate the federal securities laws as alleged in the Consolidated Class Action discussed above. The plaintiffs seek damages (and contribution from the officers) in an indeterminate amount. On October 26, 2021, the parties filed a stipulation consolidating the two cases and agreeing to stay the cases pending the outcome of the defendants’ motion to dismiss in the Consolidated Class Action discussed above. The Court has not yet ruled on the parties’ stipulation. Although these claims purport to seek recovery on behalf of the Company, the Company will incur certain expenses due to indemnification and advancement obligations with respect to the defendants. The Company understands that defendants believe this action is without merit and intends to support them as they pursue all legal avenues to defend themselves fully.
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations
The following discussion of our financial condition and results of operations should be read in conjunction with our condensed consolidated financial statements, including the related notes, and the other financial information included elsewhere in this report. In addition to historical information, this discussion and analysis contains forward-looking statements that involve risks, uncertainties and assumptions. Our actual results may differ materially from those discussed below. Factors that could cause or
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contribute to such differences include, but are not limited to, those identified below, and those discussed in the section titled “Risk Factors” included elsewhere in this report and in our Annual Report on Form 10-K for the year ended December 31, 2020 filed with the Securities and Exchange Commission.
FORWARD-LOOKING STATEMENTS
This report contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 with respect to the financial condition, results of operations, business strategies, operating efficiencies or synergies, competitive positions, growth opportunities for existing products, plans and objectives of management, markets for our stock and other matters. Statements in this report that are not historical facts are hereby identified as “forward-looking statements” for the purpose of the safe harbor provided by Section 21E of the Exchange Act of 1934, as amended (the “Exchange Act”) and Section 27A of the Securities Act of 1933, as amended. Such forward-looking statements, including, without limitation, those relating to the future business prospects, our revenue and income, wherever they occur, are necessarily estimates reflecting the best judgment of our senior management as of the date on which they were made, or if no date is stated, as of the date of this report. These forward-looking statements are subject to risks, uncertainties and assumptions, including those described in the “Risk Factors” in Item 1A of Part I of our most recent Annual Report on Form 10-K (“Form 10-K”) for the fiscal year ended December 31, 2020 and other reports we filed with the Securities and Exchange Commission (“SEC”), that may affect the operations, performance, development and results of our business. Because the factors discussed in this report could cause actual results or outcomes to differ materially from those expressed in any forward-looking statements made by us or on our behalf, you should not place undue reliance on any such forward-looking statements. New factors emerge from time to time, and it is not possible for us to predict which factors will arise. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements. We assume no obligation and do not intend to update these forward-looking statements, except as required by law.
All references to “Ontrak,” “Ontrak, Inc.,” “we,” “us,” “our” or the “Company” mean Ontrak, Inc., its wholly-owned subsidiaries and variable interest entities, except where it is made clear that the term means only the parent company.
OVERVIEW
General
We harness proprietary big data predictive analytics, artificial intelligence and telehealth, combined with human interaction, to deliver improved member health and cost savings to health plans. We identify, engage and treat health plan members with unaddressed behavioral health conditions that worsen medical comorbidities. Our mission is to help improve the health and save the lives of as many people as possible.
We apply advanced data analytics and predictive modeling to identify members with untreated behavioral health conditions, whether diagnosed or not, and coexisting medical conditions that may be impacted through treatment in the Ontrak™ program. We then uniquely engage health plan members who do not typically seek behavioral healthcare by leveraging proprietary enrollment capabilities built on deep insights into the drivers of care avoidance. Our technology enabled Ontrak™ program is an integrated suite of services that includes evidence-based psychosocial and medical interventions delivered either in-person or via telehealth, along with care coaching and in-market community care coordinators who address the social and environmental determinants of health, including loneliness. We believe that the Company's programs seek to improve member health and deliver validated cost savings to healthcare payors.
Recent Development
On August 18, 2021, we received a termination notice from Customer A of their intent not to continue the program past December 31, 2021. We believe the notification was for reasons specific to the customer’s corporate shift in strategic direction. We expect their members to graduate or disenroll before the end of 2021.
Reduction in Workforce
On February 26, 2021, we received a termination notice from Customer B and working with this customer have determined the participation of the program would not continue past December 31, 2021. As a result of this termination notice, our management assessed various options and deemed it prudent to initiate a workforce reduction plan to effectively align our resources and
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manage our operating costs, resulting in reduction of 35% of full time positions. We estimated an updated total of one-time costs of approximately $1.3 million of termination benefits to the impacted employees. During the three and nine months ended September 30, 2021, we incurred $0.05 million and $1.3 million, respectively, of severance and related benefit costs recorded as part of "General and administrative" expenses on our condensed consolidated statement of operations. As of September 30, 2021, we paid a total of $1.2 million of the total $1.3 million of termination benefits incurred through September 30, 2021 and we had $0.1 million of accrued termination related costs on our condensed consolidated balance sheet.
Metrics
The following table sets forth our key metrics that we use to evaluate our business, measure our performance, identify trends affecting our business, formulate financial projections and make strategic decisions:
•Revenue. Our revenues are mostly generated from fees charged to health plan customers related to health plan members enrolled in our Ontrak program. Our contracts are generally designed to provide cash fees to us on a monthly basis, an upfront case rate, or fee for service based on enrolled members. Our performance obligation is satisfied over the of length the Ontrak program as our services are delivered.
•Cash flow from operations. Our business activities generally have resulted in an outflow of cash flow from operations as we invest strategically into our business to help continue the growth of our operations.
•Effective Outreach Pool. Our Effective Outreach Pool represents individuals insured by our health plan customers who have been identified through our advanced data analytics and predictive modeling with untreated behavioral health conditions that may be impacted through enrollment in the Ontrak program.
| Three Months Ended September 30, | |||||||||||||||||||||||
| (In thousands, except outreach pool and percentages) | 2021 | 2020 | Change $ | Change % | |||||||||||||||||||
| Revenue | $ | 18,594 | $ | 24,022 | $ | (5,428) | (23) | % | |||||||||||||||
| Cash flow from operations | (14,265) | (2,534) | (11,731) | (463) | |||||||||||||||||||
| Nine Months Ended September 30, | |||||||||||||||||||||||
| 2021 | 2020 | Change $ | Change % | ||||||||||||||||||||
| Revenue | $ | 73,801 | $ | 53,586 | $ | 20,215 | 38 | % | |||||||||||||||
| Cash flow from operations | (11,111) | (6,084) | (5,027) | (83) | |||||||||||||||||||
At September 30, | ||||||||||||||||||||||||||
| 2021 | 2020 | Change | Change % | |||||||||||||||||||||||
| Effective Outreach Pool | 14,165 | 143,664 | (129,499) | (90) | % | |||||||||||||||||||||
Our revenue for the three months ended September 30, 2021 was $18.6 million compared to $24.0 million for the same period in 2020, and $73.8 million for the nine months ended September 30, 2021 compared to $53.6 million for the nine months ended September 30, 2020. The decrease in our revenue in the three months ended September 30, 2021 compared to the same period in 2020 was primarily due to the loss of our largest customer as previously announced and a decrease in total average enrolled members during the three months ended September 30, 2021 compared to the same period in 2020. The increase in our revenue in the nine months ended September 30, 2021 compared to the same period in 2020 was primarily due to the increase in total average enrolled members as well as the increase in revenue on a per member basis.
Our cash flow from operations for the three months ended September 30, 2021 was $(14.3) million compared to $(2.5) million for the same period in 2020, and $(11.1) million for the nine months ended September 30, 2021 compared to $(6.1) million for the same period in 2020. The year over year decrease in our cash flow from operations during the three and nine months ended September 30, 2021 as compared to the three and nine months ended September 30, 2020 was primarily due to a decrease in our deferred revenue related to the second largest customer's notice of its intention to not continue the program past December 31,
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2021 as discussed above, and our continued investment in the growth of our sales and marketing initiatives, research and development and general and administrative departments.
Our effective outreach pool at September 30, 2021 was 14,165 compared to 143,664 for the same period in 2020. The decrease was primarily due to the reduced outreach pool associated with the loss of one of our customers, as well as smaller decreases associated with the loss of a second customer and budgetary constraints limiting our enrollment at certain other customers. As we work with our remaining customers in maximizing return on their investment, optimizing our enrollment process, and enhancing our offering, the effective outreach pool could continue to fluctuate in the near term.
Key Components of Our Results of Operations
Revenue
Revenue from contracts with customers is recognized when, or as, we satisfy our performance obligations by transferring the promised goods or services to the customers. Revenue from a performance obligation satisfied over time is recognized by measuring our progress in satisfying the performance obligation in a manner that depicts the transfer of the goods or services to the customer. Revenue related to health plan customers whose health plan members are enrolled in our program is recognized over the enrollment period of the program.
Cost of Revenue
Cost of healthcare services consists primarily of salaries related to our care coaches, member engagement specialists and other staff directly involved in member care, healthcare provider claims payments and related processing fees, and other direct costs incurred to serve our health plan customers. All costs are recognized in the period in which an eligible member receives services.
Operating Expenses
Our operating expenses consist of our sales and marketing, research and development and general and administrative expenses. Sales and marketing expenses consist primarily of personnel and related expenses for our sales and marketing staff, including salaries, benefits, bonuses, stock-based compensation and commissions, and costs of marketing and promotional events, corporate communications, online marketing, product marketing and other brand-building activities. All advertising related costs are expensed as incurred. Research and development expenses consist primarily of personnel and related expenses for our engineers and software development staff, including salaries, benefits, bonuses and stock-based compensation, and the cost of certain third-party service providers. Research and development costs are expensed as incurred. General and administrative expenses consist primarily of personnel and related expenses for administrative, legal, finance, compliance and human resource staff, including salaries, benefits, bonuses and stock-based compensation, professional fees, insurance premiums, and other corporate expenses.
Interest Expense, net
Interest expense consists primarily of interest expense from our note agreements, accretion of debt discount, amortization of debt issuance costs and finance leases.
Other Income (Expense), net
Other income (expense) consists of gains (losses) associated with changes in fair value of contingent consideration and warrant liabilities and other miscellaneous income (expense) items.
RESULTS OF OPERATIONS
The table below and the discussion that follows summarize our results of operations for each of the periods presented (in thousands):
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| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||
| 2021 | 2020 | 2021 | 2020 | ||||||||||||||||||||
| Revenue | $ | 18,594 | $ | 24,022 | $ | 73,801 | $ | 53,586 | |||||||||||||||
| Cost of revenue | 5,856 | 13,068 | 27,125 | 30,177 | |||||||||||||||||||
| Gross profit | 12,738 | 10,954 | 46,676 | 23,409 | |||||||||||||||||||
| Operating expenses: | |||||||||||||||||||||||
| Research and development | 4,563 | 3,697 | 13,531 | 8,015 | |||||||||||||||||||
| Sales and marketing | 2,269 | 1,165 | 7,839 | 3,102 | |||||||||||||||||||
| General and administrative | 11,374 | 9,100 | 35,305 | 25,391 | |||||||||||||||||||
| Total operating expenses | 18,206 | 13,962 | 56,675 | 36,508 | |||||||||||||||||||
| Operating loss | (5,468) | (3,008) | (9,999) | (13,099) | |||||||||||||||||||
| Other expense, net | (361) | (847) | (1,004) | (1,226) | |||||||||||||||||||
| Interest expense, net | (2,054) | (1,818) | (6,090) | (5,156) | |||||||||||||||||||
| Net loss | $ | (7,883) | $ | (5,673) | $ | (17,093) | $ | (19,481) | |||||||||||||||
Revenue
The mix of our revenue between commercial and government insured members can fluctuate quarter over quarter. The following table sets forth our sources of revenue for each of the periods indicated:
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||||||||||||||||||||||||||
| (In thousands, except percentages) | 2021 | 2020 | Change | Change % | 2021 | 2020 | Change | Change % | |||||||||||||||||||||||||||||||||||||||
| Commercial revenue | $ | 7,093 | $ | 15,332 | $ | (8,239) | (54) | % | $ | 28,902 | $ | 32,778 | $ | (3,876) | (12) | % | |||||||||||||||||||||||||||||||
| Percentage of commercial revenue to total revenue | 38 | % | 64 | % | (26) | % | 39 | % | 61 | % | (22) | % | |||||||||||||||||||||||||||||||||||
| Government revenue | $ | 11,501 | $ | 8,690 | $ | 2,811 | 32 | % | $ | 44,899 | $ | 20,808 | $ | 24,091 | 116 | % | |||||||||||||||||||||||||||||||
| Percentage of government revenue to total revenue | 62 | % | 36 | % | 26 | % | 61 | % | 39 | % | 22 | % | |||||||||||||||||||||||||||||||||||
| Total revenue | $ | 18,594 | $ | 24,022 | $ | (5,428) | (23) | % | $ | 73,801 | $ | 53,586 | $ | 20,215 | 38 | % | |||||||||||||||||||||||||||||||
Total revenue decreased $5.4 million, or 23% in the three months ended September 30, 2021 compared to the same period of 2020, and increased by $20.2 million, or 38% in the nine months ended September 30, 2021 compared to the same period of 2020. The decrease in revenue during the three months ended September 30,2021 compared to the same period in 2020 was primarily attributable to the loss of our largest customer as previously announced and a decrease in total average enrolled members. The increase in revenue during the nine months ended September 30, 2021 compared to the same period in 2020 was primarily attributable to revenue relating to the increase in total average enrolled members as well as the increase in revenue on a per member basis.
The mix of our revenues from government customers increased to 62% and 61% in the three and nine months ended September 30, 2021, respectively, compared to 36% and 39% in the three and nine months ended September 30, 2020, respectively. This increase in mix of revenues from government customers was mainly due to our expansion of health plan customers with Medicare and Medicaid members.
We currently expect revenues in the fourth quarter of 2021 to decline year over year from the comparable period in the prior year, primarily as a result of the lost customers discussed above and budgetary constraints limiting our enrollment and pricing with certain other customers to the fullest extent.
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Cost of Revenue, Gross Profit and Gross Profit Margin
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||||||||||||||||||||||||||
| (In thousands, except percentages) | 2021 | 2020 | Change | Change % | 2021 | 2020 | Change | Change % | |||||||||||||||||||||||||||||||||||||||
| Cost of revenue | $ | 5,856 | $ | 13,068 | $ | (7,212) | (55) | % | $ | 27,125 | $ | 30,177 | $ | (3,052) | (10) | % | |||||||||||||||||||||||||||||||
| Gross profit | 12,738 | 10,954 | 1,784 | 16 | % | 46,676 | 23,409 | 23,267 | 99 | % | |||||||||||||||||||||||||||||||||||||
| Gross profit margin | 69 | % | 46 | % | 23 | % | 63 | % | 44 | % | 19 | % | |||||||||||||||||||||||||||||||||||
Cost of revenue decreased $7.2 million, or 55% in the three months ended September 30, 2021 compared to the same period of 2020. The decrease in cost of revenue during the three months ended September 30, 2021 was primarily due to headcount efficiencies gained and cost optimization initiatives as we improve the operations for our member facing organization. Gross profit and gross profit margin increased by $1.8 million and 23%, respectively, in the three months ended September 30, 2021 compared to the same period of 2020. The increase in both gross profit and gross profit margin in the three months ended September 30, 2021 was primarily due to the increase in our revenue on a per member enrolled basis, as well as headcount efficiencies gained and cost optimization initiatives as we improve the operations for our member facing organization.
Cost of revenue decreased $3.1 million, or 10% in the nine months ended September 30, 2021 compared to the same period of 2020. The decrease in cost of revenue during the nine months ended September 30, 2021 was primarily due to a decrease in member outreach related costs, partially offset by an increase in compensation costs relating to member outreach team members. Gross profit and gross profit margin increased by $23.3 million and 19%, respectively, in the nine months ended September 30, 2021 compared to the same period of 2020. The increase in both gross profit and gross profit margin in the nine months ended September 30, 2021 was primarily due to the increase in our revenue on a per member enrolled basis discussed above, as well as headcount efficiencies gained and cost optimization initiatives as we improve the operations for our member facing organization.
For the remainder of 2021, we expect cost of revenue to decline year over year.
Operating Expenses
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||||||||||||||||||||||||||
| (In thousands, except percentages) | 2021 | 2020 | Change | Change % | 2021 | 2020 | Change | Change % | |||||||||||||||||||||||||||||||||||||||
| Operating expenses: | |||||||||||||||||||||||||||||||||||||||||||||||
| Research and development | $ | 4,563 | $ | 3,697 | $ | 866 | 23 | % | $ | 13,531 | $ | 8,015 | $ | 5,516 | 69 | % | |||||||||||||||||||||||||||||||
| Sales and marketing | 2,269 | 1,165 | 1,104 | 95 | 7,839 | 3,102 | 4,737 | 153 | |||||||||||||||||||||||||||||||||||||||
| General and administrative | 11,374 | 9,100 | 2,274 | 25 | 35,305 | 25,391 | 9,914 | 39 | |||||||||||||||||||||||||||||||||||||||
| Total operating expenses | $ | 18,206 | $ | 13,962 | $ | 4,244 | 30 | $ | 56,675 | $ | 36,508 | $ | 20,167 | 55 | |||||||||||||||||||||||||||||||||
| Operating loss | $ | (5,468) | $ | (3,008) | $ | (2,460) | 82 | % | $ | (9,999) | $ | (13,099) | $ | 3,100 | (24) | % | |||||||||||||||||||||||||||||||
| Operating loss margin | (29) | % | (13) | % | (16) | % | (14) | % | (24) | % | 10 | % | |||||||||||||||||||||||||||||||||||
Total operating expense increased by $4.2 million, or 30%, in the three months ended September 30, 2021 compared to the same period in 2020. The increase in operating expenses was primarily due to the following:
•$0.9 million increase in our research and development costs, which was primarily related to an increase of $0.4 million in employee-related costs, $0.3 million of amortization expense relating to acquired software technology and $0.2 million increase in software costs as we invest in continued enhancement of our technology and related tools to support the growth of our business.
•$1.1 million increase in our sales and marketing costs, which was primarily related to an increase of $0.6 million of professional service and promotional costs related to marketing initiatives and $0.5 million increase in employee-related costs.
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•$2.3 million increase in our general and administrative costs, which was primarily related to $1.4 million increase in employee-related costs and a $0.8 million increase in insurance costs.
Total operating expense increased by $20.2 million, or 55%, in the nine months ended September 30, 2021 compared to the same period in 2020. The increase in operating expenses was primarily due to the following:
•$5.5 million increase in our research and development costs, which was primarily related to an increase of $3.0 million in employee-related costs, $1.6 million increase in professional consulting and software costs, as we invest in continued enhancement of our technology and related tools to support the growth of our business and $0.9 million of amortization expense primarily relating to acquired software technology.
•$4.7 million increase in our sales and marketing costs, which was primarily related to an increase of $2.7 million of professional service and promotional costs related to marketing initiatives, $1.5 million increase in employee-related costs and $0.4 million increase in professional consulting fees.
•$9.9 million increase in our general and administrative costs, which was primarily related to $5.0 million increase in employee-related costs, $2.4 million increase in insurance costs, $1.4 million of severance costs related to the workforce reduction, and $1.3 million increase in legal expenses, partially offset by $0.9 million decrease in professional consulting fees.
We expect our operating expenses to increase for the foreseeable future as we continue to make investments in the growth of our business, but we expect our operating expenses to decrease as a percentage of revenue over time. Our operating expenses may fluctuate as a percentage of our total revenue from period to period due to the timing and extent of our operating and strategic initiatives.
Other Expense, net
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||||||||||||||||||||||||||
| (In thousands, except percentages) | 2021 | 2020 | Change $ | Change % | 2021 | 2020 | Change $ | Change % | |||||||||||||||||||||||||||||||||||||||
| Other expense, net | $ | (361) | $ | (847) | $ | 486 | 57 | % | $ | (1,004) | $ | (1,226) | $ | 222 | 18 | % | |||||||||||||||||||||||||||||||
The decrease in other expense, net for the three months ended September 30, 2021 was primarily due to $0.5 million loss on the change in fair value of the contingent liability relating to an acquisition compared to $0.8 million loss related to a change in the fair value of a warrant liability in the three months ended September 30, 2020.
The decrease in other expense, net for the nine months ended September 30, 2021 was primarily due to $1.3 million loss on the change in fair value of the contingent liability relating to an acquisition, partially offset by $0.2 million gain on the forgiveness of the LifeDojo PPP loan, compared to $1.2 million loss related to a change in the fair value of a warrant liability in the nine months ended September 30, 2020.
Interest Expense, net
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||||||||||||||||||||||||||||||||||||
| (In thousands, except percentages) | 2021 | 2020 | Change $ | Change % | 2021 | 2020 | Change $ | Change % | |||||||||||||||||||||||||||||||||||||||
| Interest expense, net | $(2,054) | $ | (1,818) | $ | (236) | (13) | % | $ | (6,090) | $ | (5,156) | $ | (934) | (18) | % | ||||||||||||||||||||||||||||||||
The increase in interest expense for the three and nine months ended September 30, 2021 was primarily due to the higher average total outstanding loan balance during the three and nine months ended September 30, 2021 compared to the same periods of 2020.
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LIQUIDITY AND CAPITAL RESOURCES
Cash and restricted cash was $84.8 million as of September 30, 2021. We had working capital of $82.8 million as of September 30, 2021. We have incurred significant net losses and negative operating cash flows since our inception. We expect our current cash resources to cover expenses through at least the next twelve months. However, delays in cash collections, revenue, or unforeseen expenditures could impact this estimate.
Our ability to fund our ongoing operations is dependent on increasing the number of members that enroll in the Ontrak program. We provide services to commercial (employer funded), managed Medicare Advantage, and managed Medicaid and duel eligible (Medicare and Medicaid) populations.
Historically, we have seen and continue to see net losses, net loss from operations, negative cash flow from operating activities, and historical working capital deficits as we continue through a period of rapid growth. The accompanying consolidated financial statements do not reflect any adjustments that might result if we were unable to continue as a going concern. As we continue to execute on our strategy, we have entered into contracts for additional revenue-generating health plan customers and expanded our Ontrak program within existing health plan customers, as well as completed equity and debt financings totaling $87 million and $10 million, respectively, in 2020. To support increased demand for services, we have historically invested and will continue to invest in additional headcount, as needed, and invest in enhancements to technology needed to support the anticipated growth. Additional management plans include adding new customers, increasing the effective outreach pool as well as improving our current enrollment rate. We will continue to explore ways to increase operational efficiencies and maximizing return on investments for our customers.
We plan to continue to add new customers and believe we are able to fully scale our operations to service the contracts and future enrollment providing leverage in these investments that will generate positive cash flow in the near future. We believe we will have enough capital to cover expenses through the next twelve months and we will continue to monitor liquidity. If we add more health plans than budgeted, increase the size of the outreach pool by more than we anticipate, decide to invest in new products or seek out additional growth opportunities, or in order to provide liquidity for an extended period of losses, we would consider financing these options with either a debt or equity financing.
Cash Flows
The following table sets forth a summary of our cash flows for the periods indicated (in thousands):
| Nine Months Ended September 30, | |||||||||||
| 2021 | 2020 | ||||||||||
| Net cash used in operating activities | $ | (11,111) | $ | (6,084) | |||||||
| Net cash used in investing activities | (3,865) | (1,131) | |||||||||
| Net cash (used in) provided by financing activities | (3,467) | 60,594 | |||||||||
| Net (decrease) increase in cash and restricted cash | $ | (18,443) | $ | 53,379 | |||||||
Net cash used in operating activities during the nine months ended September 30, 2021 was $11.1 million compared with $6.1 million during the same period in 2020. The $5.0 million increase in net cash used in operating activities during the nine months ended September 30, 2021 was primarily related to the increase in revenue resulting from the recognition of deferred revenue as service performance obligation is completed and higher cash interest payments during the nine months ended September 30, 2021 compared to the nine months ended September 30, 2020. These increases were partially offset by an increase in members with case rate billing terms, where we bill and collect the fees from the enrolled members up front upon enrollment.
Net cash used in investing activities was $3.9 million for the nine months ended September 30, 2021 and $1.1 million in the same period of 2020. The $3.9 million of net cash used in investing activities for the nine months ended September 30, 2021 was primarily related to capitalized software development costs. The $1.1 million of net cash used in investing activities for the nine months ended September 30, 2020 was primarily related to capitalized software development costs as well as purchases of computer equipment. We anticipate that software development costs and capital expenditures will increase in the future as we continue our investment in our IT infrastructure as well as replace our computer systems that are reaching the end of their useful lives, increase equipment to support our increased number of enrolled members, and enhance the reliability and security of our
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systems. These future capital expenditure requirements will also depend upon many factors, including obsolescence or failure of our systems, progress with expanding the adoption of our solutions, number of member facing employees needed based on the growth of our enrolled members our marketing efforts, the necessity of, and time and costs involved in obtaining, regulatory approvals, competing technological and market developments, and our ability to establish collaborative arrangements, effective commercialization, marketing activities and other arrangements.
Our net cash used in financing activities was $3.5 million for the nine months ended September 30, 2021 compared with net cash provided by financing activities of $60.6 million for the nine months ended September 30, 2020. The $3.5 million of net cash used in financing activities for the nine months ended September 30, 2021 was primarily related to $6.7 million of dividend payments made on our Series A Preferred Stock and $2.2 million of payments made on our financed insurance premiums, partially offset by $5.6 million of proceeds received from stock option exercises. The $60.6 million of net cash provided by financing activities for the nine months ended September 30, 2020 was primarily related to $45.1 million of net proceeds from the issuance of Series A Preferred Stock, $10.0 million from the issuance of the remaining 2024 Notes and $5.7 million of proceeds received from stock option exercises.
As a result of the above, our cash and cash equivalents, including restricted cash of $9.5 million, was $84.8 million as of September 30, 2021.
Debt
See Note 9 of the Notes to Condensed Consolidated Financial Statements in Part I, Item 1 of this Quarterly Report on Form 10-Q for a detailed discussion about our debt.
Preferred Stock Dividend
Holders of 9.50% Series A Cumulative Perpetual Preferred Stock (the "Series A Preferred Stock") of record at the close of business of each respective record date (February 15, May 15, August 15 and November 15) are entitled to receive, when, as and if declared by our Board of Directors, out of funds legally available for the payment of dividends, cumulative cash dividends at the rate of 9.50% per annum of the $25.00 per share liquidation preference (equivalent to $2.375 per annum per share). Dividends, if and when declared by our Board of Directors, are payable quarterly in arrears, every February 28, May 30, August 31, and November 30, as applicable, beginning on or about November 30, 2020.
On February 5, 2021, May 5, 2021 and August 4, 2021, our Board of Directors declared the second, third and fourth quarterly dividends, respectively, on the Company's Series A Preferred Stock for shareholders of record as of the close of business on February 15, 2021, May 15, 2021 and August 15, 2021, respectively. Each quarterly cash dividend equaled $0.593750 per share, at 9.50% per annum of liquidation preference of $25.00 per share. As such, we paid cash dividend of $2.2 million each on February 28, 202, May 30, 2021 and August 31, 2021. At September 30, 2021, we had undeclared dividends of $0.7 million.
CONTRACTUAL OBLIGATIONS AND OTHER COMMITMENTS
There were no material changes in our contractual obligations and commitments outside of the ordinary course of business during the nine months ended September 30, 2021 from the contractual obligations and commitments reported in our Annual Report on Form 10-K for the year ended December 31, 2020, filed with the SEC on March 9, 2021.
OFF BALANCE SHEET ARRANGEMENTS
During the periods presented, we did not have, nor do we currently have, any relationships with unconsolidated entities or financial partnerships, such as entities often referred to as structured finance or special purpose entities, which would have been established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow or limited purposes. We are therefore not exposed to the financing, liquidity, market or credit risk that could arise if we had engaged in those types of relationships.
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
See Note 2 of the Notes to the Consolidated Financial Statements in Part II, Item 8 of the 2020 Form 10-K, and “Critical Accounting Policy and Estimates” in Part II, Item 7 of our 2020 Form 10-K for a discussion of the significant accounting policies
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and methods used in the preparation of the Company’s condensed consolidated financial statements. There have been no material changes to the Company’s critical accounting policies and estimates since the 2020 Form 10-K.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
Not applicable.
Item 4. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
We have evaluated, with the participation of our principal executive officer and our principal financial officer, the effectiveness of our disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) as of September 30, 2021. Based on this evaluation, our principal executive officer and our principal financial officer have concluded that, as of September 30, 2021, our disclosure controls and procedures were effective to ensure that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms, and is accumulated and communicated to our management, including our principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.
Changes in Internal Control over Financial Reporting
There were no changes in our internal controls over financial reporting during the three months ended September 30, 2021 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
From time to time, we are subject to various legal proceedings that arise in the normal course of our business activities. As of the date of this Quarterly Report on Form 10-Q, we were not a party to any litigation the outcome of which, if determined adversely to us, would individually or in the aggregate be reasonably expected to have a material adverse effect on our results of operations or financial position, except for the following:
Loss Contingency
On March 3, 2021, a purported securities class action was filed in the United States District Court for the Central District of California, entitled Farhar v. Ontrak, Inc., Case No. 2:21-cv-01987. On March 19, 2021, another similar lawsuit was filed in the same court, entitled Yildrim v. Ontrak, Inc., Case No. 2:21-cv-02460. On July 14, 2021, the Court consolidated the two actions under the Farhar case (“Consolidated Class Action”), appointed Ibinabo Dick as lead plaintiff, and the Rosen Law Firm as lead counsel. On August 13, 2021, lead plaintiff filed a consolidated amended complaint. In the Consolidated Amended Complaint, lead plaintiff, purportedly on behalf of a putative class of purchasers of Ontrak securities from August 5, 2020 through February 26, 2021, alleges that the Company and Terren S. Peizer, Brandon H. Laverne and Curtis Medeiros, violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78t(a), and Rule 10b-5, 17 C.F.R. § 240.10b-5, promulgated thereunder, by intentionally or recklessly making false and misleading statements and omissions in various press releases, SEC filings and conference calls with investors on August 5, 2020 and November 5, 2020. Specifically, the Consolidated Amended Complaint alleges that the Company was inappropriately billing its largest customer, Aetna, causing Aetna to, in May 2020, shut off its data feed to Ontrak, and, in July 2020, require Ontrak to complete a Corrective Action Plan (“CAP”). Lead plaintiff alleges that defendants: (1) misrepresented to investors that the data feed was shut off in July 2020, and that it was part of Aetna’s standard compliance review of all of its vendors; (2) failed to disclose to investors that Aetna had issued the CAP; and (3) failed to disclose to investors that Ontrak was engaging in inappropriate billing practices. Lead plaintiff seeks certification of a class and monetary damages in an indeterminate amount. On September 13, 2021, defendants filed a motion to dismiss the Consolidated Amended Complaint for failure to state a claim under Federal Rules of Civil Procedure 12(b)(6) and 9(b) and the Private
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Securities Litigation Reform Act of 1995, 15 U.S.C. §§ 78u-4, et seq. The motion is fully briefed, and the hearing on the motion is set for November 12, 2021, at 1:30 p.m. PT. We believe that the allegations lack merit and intend to defend against the action vigorously.
On August 6, 2021, a purported stockholder derivative complaint was filed in the United States District Court for the Central District of California, entitled Aptor v. Peizer, Case No. 2:21-cv-06371, alleging breach of fiduciary duty on behalf of the Company against Terren S. Peizer, Brandon H. LaVerne, Richard A. Berman, Michael Sherman, Diane Seloff, Robert Rebak, Gustavo Giraldo and Katherine Quinn, and contribution against Terren S. Peizer and Brandon H. LaVerne. On October 6, 2021, a similar shareholder derivative action was filed in the same court, entitled Anderson v. Peizer, Case No. 2:21-cv-07998, for breach of fiduciary duty, abuse of control, unjust enrichment, gross mismanagement and waste of corporate assets against Terren S. Peizer, Brandon H. LaVerne, Curtis Medeiros, Richard A. Berman, Michael Sherman, Edward Zecchini, Diane Seloff, Robert Rebak, Gustavo Giraldo, and Katherine Quinn, and contribution against Terren S. Peizer, Brandon H. LaVerne and Curtis Medeiros. In these actions, plaintiffs allege that the defendants breached their fiduciary duties by allowing or causing the Company to violate the federal securities laws as alleged in the Consolidated Class Action discussed above. The plaintiffs seek damages (and contribution from the officers) in an indeterminate amount. On October 26, 2021, the parties filed a stipulation consolidating the two cases and agreeing to stay the cases pending the outcome of the defendants’ motion to dismiss in the Consolidated Class Action discussed above. The Court has not yet ruled on the parties’ stipulation. Although these claims purport to seek recovery on behalf of the Company, the Company will incur certain expenses due to indemnification and advancement obligations with respect to the defendants. The Company understands that defendants believe this action is without merit and intends to support them as they pursue all legal avenues to defend themselves fully.
Item 1A. Risk Factors
In evaluating us and our securities, we urge you to carefully consider the risks, uncertainties and other information in this Quarterly Report on Form 10-Q, as well as the risk factors disclosed in Item 1A to Part I of our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, which we filed with the SEC on March 9, 2021 and as amended on April 30, 2021. Any of the risks discussed in this Quarterly Report on Form 10-Q or any of the risks disclosed in Item 1A to Part I of our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, as well as additional risks and uncertainties not currently known to us or that we currently deem immaterial, could materially and adversely affect our results of operations or financial condition. If any of these risks occur, our business, results of operations and financial condition could be harmed, the price of our common stock could decline, and future events and circumstances could differ significantly from those anticipated in the forward-looking statements contained in this Quarterly Report on Form 10-Q.
Summary of Risk Factors
Below is a summary of the principal factors that make an investment in our securities speculative or risky. This summary does not address all of the risks that we face. Additional discussion of the risks summarized in this risk factor summary, and other risks that we face, can be found below under the heading “Risk Factors” and should be carefully considered, together with other information in this Form 10-K and our other filings with the SEC, before making an investment decision regarding our securities.
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● | We have a limited operating history, have incurred significant losses since our inception and may be unable to obtain additional funds before we achieve positive cash flows. | |||||||
● | We may fail to manage our growing business and may not be successful in identifying or completing any acquisitions necessary to continue such growth. Any such acquisition completed may not be successfully integrated with our operations or yield additional value for stockholders. | |||||||
● | Our programs and solutions may not be as effective as we believe and may not achieve broad market acceptance and announcements of disappointing results may lead to declines in the market prices of our securities. | |||||||
● | Our business currently depends upon a few large customers; the loss of any one of such customers would have a material adverse effect on us. | |||||||
● | The agreement with our lenders regarding our outstanding senior secured indebtedness contains significant restrictions on our business and operations and requires ongoing compliance with detailed financial covenants. Any failure to comply with the terms of such indebtedness would have a material adverse effect on our business and our securities. | |||||||
● | We may not be able to generate sufficient cash flow or raise adequate financing to grow or scale our business or to fund our operations. | |||||||
● | We depend upon our senior management and key consultants and their loss or unavailability could put us at a competitive disadvantage. | |||||||
● | We need to attract and retain highly skilled personnel; we may be unable to effectively manage growth with our limited resources. | |||||||
● | Customers may not achieve the savings we expect are created by our programs and solutions, which could adversely impact our business. | |||||||
● | Market acceptance of our programs and solutions depends in large part on the willingness of third party payors to cover them, which is beyond our control. | |||||||
● | We may be unable to protect our intellectual property rights and we may be liable for infringing the intellectual property rights of others. | |||||||
● | Ongoing healthcare legislative and regulatory reform measures may have a material adverse effect on our business and results of operations. | |||||||
● | We must comply with significant government regulations, including with respect to licensure and privacy matters. | |||||||
● | Our Series A Preferred Stock has no fixed maturity date, ranks junior to our currently outstanding indebtedness, is entitled to the payment of dividends only to the extent we may do so under Delaware corporate law, is subject to restrictions on transfer contained in our charter and has limited voting rights. | |||||||
● | Our Executive Chairman controls approximately 48% of the outstanding common stock and may determine all matters presented for stockholder approval, including the election of directors, significant corporate transactions and our dissolution. | |||||||
● | The price of our common stock and preferred stock may be volatile. | |||||||
● | The market prices for our common stock and preferred stock may be adversely impacted by future events. | |||||||
● | Our certificate of incorporation, bylaws and Delaware law have anti-takeover provisions that could discourage, delay or prevent a change in control, which may cause our stock price to decline. | |||||||
Risk Factors
Risks related to our business
We have a limited operating history, expect to continue to incur substantial operating losses and may be unable to obtain additional financing.
We have been unprofitable since our inception in 2003 and expect to incur substantial additional operating losses and negative cash flow from operations for at least the next twelve months. At September 30, 2021, cash and restricted cash was $84.8 million and accumulated deficit was $371.1 million. We expect our current cash resources to cover expenses through at least the next 12 months from the filing date of this Quarterly Report on Form 10-Q. However, delays in cash collections, revenue, or unforeseen expenditures could impact this estimate.
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Historically, we have seen and continue to see net losses, net loss from operations, negative cash flow from operating activities, and historical working capital deficits as we continue through a period of rapid growth. The accompanying financial statements do not reflect any adjustments that might result if we were unable to continue as a going concern. As we continue to execute on our strategy, we have entered into contracts for additional revenue-generating health plan customers and expanded our Ontrak program within existing health plan customers, as well as completed equity and debt financings totaling approximately $87 million and $10 million, respectively, in 2020. To support increased demand for services, we have historically invested and will continue to invest in additional headcount, as needed, and invest in enhancements to technology needed to support the anticipated growth. Additional management plans include adding new customers, increasing the effective outreach pool as well as improving our current enrollment rate. We will continue to explore ways to increase operational efficiencies and maximizing return on investments for our customers.
We plan to continue to add new customers and believe we are able to fully scale our operations to service the contracts and future enrollment providing leverage in these investments that will generate positive cash flow in the future. We currently believe we will have enough capital to cover our expected expenses through the foreseeable future and we will continue to monitor liquidity, however, if we are unable to make sufficient new sales or expand existing customer contracts, we may not continue to have sufficient capital to continue to scale our operations, service our contracts and future enrollments or cover our operating expenses. Additionally, if we add more health plans than budgeted, increase the size of the outreach pool by more than we anticipate, decide to invest in new products or seek out additional growth opportunities, or in order to provide liquidity for an extended period of losses, we would consider seeking financing for these options with either a debt or equity financing for which there can be no assurance that any such financing will be available on acceptable terms or at all.
We may need additional funding, and we cannot guarantee that we will find adequate sources of capital in the future.
We have incurred negative cash flows from operations since inception and have expended, and expect to continue to expend, substantial funds to support and grow our business. We may require additional funds before we are able to generate enough cash flows to fund our operations and meet our obligations.
If we raise additional funds by issuing equity securities, such financing will result in further dilution to our stockholders. Any equity securities issued also may provide for rights, preferences or privileges senior to those of holders of our common stock. If we raise funds by issuing debt securities, these debt securities would have rights, preferences and privileges senior to those of holders of our common stock, and the terms of the debt securities issued could impose significant restrictions on our operations in addition to those referenced above.
We do not know whether additional financing will be available on commercially acceptable terms, or at all. If adequate funds are not available or are not available on commercially acceptable terms, we may need to downsize, curtail program development efforts or halt our operations altogether.
We may fail to successfully manage and grow our business, which could adversely affect our results of operations, financial condition and business.
Continued expansion could put significant strain on our management, operational and financial resources. The need to comply with the rules and regulations of the SEC will continue to place significant demands on our financial and accounting staff, financial, accounting and information systems, and our internal controls and procedures, any of which may not be adequate to support our anticipated growth. The need to comply with the state and federal healthcare, security and privacy regulation will continue to place significant demands on our staff and our policies and procedures, any of which may not be adequate to support our anticipated growth. We may not be able to effectively hire, train, retain, motivate and manage required personnel. Our failure to manage growth effectively could limit our ability to satisfy our reporting obligations, or achieve our marketing, commercialization and financial goals.
We may be unable to successfully execute on our growth initiatives, business strategies or operating plans.
We are continually executing a number of growth initiatives, strategies and operating plans designed to enhance our business. The anticipated benefits from these efforts are based on several assumptions that may prove to be inaccurate. Moreover, we may not be able to successfully complete these growth initiatives, strategies and operating plans and realize all of the benefits, including growth targets and cost savings, that we expect to achieve or it may be more costly to do so than we anticipate. A variety of risks could cause us not to realize some or all of the expected benefits. These risks include, among others, delays in the anticipated timing of activities related to such growth initiatives, strategies and operating plans, increased difficulty and cost in implementing these efforts, including difficulties in complying with new regulatory requirements and the incurrence of other unexpected costs associated with operating the business, failure of our products to receive sufficient market acceptance and a highly competitive, rapidly evolving marketplace. Moreover, our continued implementation of our programs may disrupt our operations and performance. As a result, we cannot assure you that we will realize the intended benefits. If, for any reason, the
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benefits we realize are less than our estimates or the implementation of our growth initiatives, strategies and operating plans adversely affect our operations or cost more or take longer to effectuate than we expect, or if our assumptions prove inaccurate, our business, financial condition and results of operations may be materially adversely affected.
We may periodically consummate opportunistic acquisitions of other companies, and we may not realize expected benefits or such acquisitions or we may have difficulties integrating acquired companies into our operations in a cost-effective manner, if at all.
We may periodically consummate opportunistic acquisitions of businesses, assets, personnel or technologies that allow us to complement our existing operations, expand our market coverage, enter new geographic markets, or add new business capabilities. We continually evaluate and explore strategic opportunities as they arise, including business combination transactions, strategic partnerships, and the purchase or sale of assets. In October 2020, we completed a strategic acquisition and have integrated this acquisition into our operations. No assurance can be given that the benefits or synergies we may expect from an acquisition will be realized to the extent or in the time frame we anticipate. We may lose key employees, customers, vendors and other business partners of a company we acquire after announcement of acquisition plans. In addition, an acquisition may involve a number of risks and difficulties, including expansion into new geographic markets and business areas in which our management has limited prior experience, the diversion of management’s attention to the operations and personnel of the acquired company, the integration of the acquired company’s personnel, operations and technology systems and applications, changing relationships with customers, vendors or strategic partners, differing regulatory requirements including in new geographic markets and new business areas, and potential short-term adverse effects on our operating results. These challenges can be magnified as the size of the acquisition increases. Any delays or unexpected costs incurred in connection with the integration of an acquired company or otherwise related to an acquisition could have a material adverse effect on our business, financial condition and results of operations.
An acquisition may require significant expenses and can result in increased debt or other contingent liabilities, adverse tax consequences, deferred compensation charges, the recording and later amortization of amounts related to deferred compensation and certain purchased intangible assets, and the refinement or revision of fair value acquisition estimates following the completion of an acquisition, any of which items could negatively impact our business, financial condition and results of operations. In addition, we may record goodwill in connection with an acquisition and incur goodwill impairment charges in the future. Any of these charges could cause the price of our common stock to decline. An acquisition also could absorb substantial cash resources, require us to incur or assume debt obligations, or involve our issuance of additional equity securities. If we issue equity securities in connection with an acquisition, we may dilute our common stock with securities that have an equal or a senior interest in our company. An acquired entity also may be leveraged or dilutive to our earnings per share, or may have unknown liabilities. In addition, the combined entity may have lower than expected revenues or higher expenses and therefore may not achieve the anticipated results. Any of these factors relating to an acquisition could have a material adverse impact on our business, financial condition and results of operations.
Our programs may not be as effective as we believe them to be, which could limit our potential revenue growth.
Our belief in the efficacy of our Ontrak solution is based on a limited experience with a relatively small number of members. Such results may not be indicative of the long-term future performance of treatment with our programs. If the initially indicated results cannot be successfully replicated or maintained over time, utilization of our programs could decline substantially. There are no standardized methods for measuring efficacy of programs such as ours. Even if we believe our solutions are effective, our customers could determine they are not effective by utilizing different outcome measures. In addition, even if our customers determine our solutions are effective they may discontinue them because they determine that the aggregate cost savings are not sufficient, our programs do not have a high enough return on investment, they prefer other competitive or strategic solutions or do not believe our programs deliver other desired benefits such as clinical outcomes. Our success is dependent on our ability to enroll third-party payor members in our Ontrak solutions. Large scale outreach and enrollment efforts have not been conducted and only for limited time periods and we may not be able to achieve the anticipated enrollment rates.
Our Ontrak solution may not become widely accepted, which could limit our growth.
Our ability to achieve further marketplace acceptance for our Ontrak solution is dependent on our ability to demonstrate financial and clinical outcomes from our agreements. If we are unable to secure sufficient contracts to achieve recognition or acceptance of our Ontrak solution or if our program does not demonstrate the expected level of clinical improvement and cost savings, it is unlikely that we will be able to achieve widespread market acceptance.
Disappointing results for our solutions or failure to attain our publicly disclosed milestones could adversely affect market acceptance and have a material adverse effect on our stock price.
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Disappointing results, later-than-expected press release announcements or termination of evaluations, pilot programs or commercial Ontrak solutions could have a material adverse effect on the commercial acceptance of our solutions, our stock price and on our results of operations. In addition, announcements regarding results, or anticipation of results, may increase volatility in our stock price. In addition to numerous upcoming milestones, from time to time we provide financial guidance and other forecasts to the market. While we believe that the assumptions underlying projections and forecasts we make publicly available are reasonable, projections and forecasts are inherently subject to numerous risks and uncertainties. Any failure to achieve milestones, or to do so in a timely manner, or to achieve publicly announced guidance and forecasts, could have a material adverse effect on our results of operations and the price of our common stock.
We face business disruption and related risks resulting from the novel coronavirus 2019 (COVID-19) pandemic, which could have a material adverse effect on our business and results of operations.
Our business could be disrupted and materially adversely affected by the COVID-19 pandemic, including as a result of mutations of such virus and the global spread of viral variants that may be more contagious or resistant to currently known treatments. As a result of measures imposed by the governments in affected regions, businesses and schools have been from time to time suspended due to quarantines intended to contain this outbreak and many people have been forced to work from home in those areas. As a result of the global pandemic, trade and business activities around the world have been adversely affected, international stock and commodity markets have fluctuated widely and many regions are exhibiting signs of economic recession. Several programs were enacted in different countries in efforts to alleviate rising levels of unemployment and economic dislocation created by significantly reduced levels of social and business activity, although their longer term effectiveness is still uncertain particularly in view of the spread of the contagion and related variants. We are continuously assessing our business operations and system supports and the impact COVID-19 may have on our results and financial condition, but there can be no assurance that this analysis will enable us to avoid part or all of any impact from the spread of COVID-19 or its consequences, including downturns in business sentiment generally or in our sector in particular, or its effects on our members or outreach pool.
Our industry is highly competitive, and we may not be able to compete successfully.
The healthcare business in general, and the behavioral health treatment business in particular, are highly competitive and rapidly evolving. While we believe our products and services are in many aspects unique, we operate in highly competitive markets. We compete with other healthcare management service organizations, care management and disease management companies, including Managed Behavioral Healthcare Organizations (MBHOs), other specialty healthcare and managed care companies, and healthcare technology companies that are offering treatment and support of behavioral health on-line and on mobile devices. Most of our competitors are significantly larger and have greater financial, marketing and other resources than us. We believe that our ability to offer customers a comprehensive and integrated behavioral health solution, including the utilization of our analytical models and innovative member engagement methodologies, will enable us to compete effectively. However, there can be no assurance that we will not encounter more effective or more strategically desirable competition in the future, that we will have financial resources to continue to improve our offerings or that we will be successful improving them, which would limit our ability to maintain or increase our business.
Our competitors may develop and introduce new processes and products that are equal or superior to our programs in treating behavioral health conditions. Accordingly, we may be adversely affected by any new processes and products developed by our competitors.
A substantial percentage of our revenues are attributable to five large customers, any or all of which may terminate our services at any time.
Five customers accounted for an aggregate of approximately 94% and 98% of our total revenue for the three months ended September 30, 2021 and 2020, respectively, and four customers accounted for an aggregate of approximately 96% and 97% of our total revenue for the nine months ended September 30, 2021 and 2020, respectively. Also, five customers represented an aggregate of approximately 89% of our total accounts receivable as of September 30, 2021 and two customers represented an aggregate of approximately 99% of our total accounts receivable as of December 31, 2020.
On February 26, 2021, the Company received a termination notice from Customer B and working with this customer have determined the participation of the program would not continue past December 31, 2021. For the three and nine months ended September 30, 2021, Customer B accounted for approximately 18% and 31%, respectively, of our total revenue. On August 18, 2021, we received a termination notice from Customer A of their intent not to continue the program past December 31, 2021. For the three and nine months ended September 30, 2021, Customer A accounted for approximately 51% and 47%, respectively, of our total revenue. We expect their members to graduate or disenroll before the end of 2021.
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We expect that revenues from a limited number of customers will continue for the foreseeable future. Sales to these customers are made pursuant to agreements with flexible termination provisions, generally entitling the customer to terminate with or without cause on limited notice to us, as we have recently experienced during fiscal year 2021 as described above, and which have adversely affected our business and financial condition and results. We may not be able to keep our key customers, or these customers may decrease their enrollment levels. Any substantial decrease or delay in revenues relating to one or more of our key customers would harm our business and financial condition and results. If revenues relating to current key customers cease or are reduced, we may not obtain sufficient enrollments from other customers necessary to offset any such losses or reductions.
We depend on key personnel, the loss of which could impact the ability to manage our business.
We are highly dependent on our senior management and key operating and technical personnel. The loss of the services of any member of our senior management and key operating and technical personnel could have a material adverse effect on our business, operating results and financial condition. We also rely on consultants and advisors to assist us in formulating our strategy.
As our company grows, we will need to hire additional employees in order to achieve our objectives. There is currently intense competition for skilled executives and employees with relevant expertise, and this competition is likely to continue. The inability to attract and retain sufficient personnel could adversely affect our business, operating results and financial condition.
Our success depends largely upon the continued services of our key executive officers. These executive officers are at-will employees and therefore they may terminate employment with us at any time with no advance notice. We also rely on our leadership team in the areas of research and development, marketing, services and general and administrative functions. From time to time, there may be changes in our executive management team resulting from the hiring or departure of executives, which could disrupt our business. The replacement of one or more of our executive officers or other key employees would likely involve significant time and costs and may significantly delay or prevent the achievement of our business objectives.
To continue to execute our growth strategy, we also must attract and retain highly skilled personnel. Competition is intense for qualified professionals. We may not be successful in continuing to attract and retain qualified personnel. We have from time to time in the past experienced, and we expect to continue to experience in the future, difficulty in hiring and retaining highly skilled personnel with appropriate qualifications. The pool of qualified personnel with experience working in the healthcare market is limited overall. In addition, many of the companies with which we compete for experienced personnel have greater resources than we have.
In addition, in making employment decisions, particularly in high-technology industries, job candidates often consider the value of the stock options or other equity instruments they are to receive in connection with their employment. Volatility in the price of our stock may, therefore, adversely affect our ability to attract or retain highly skilled personnel. Further, the requirement to expense stock options and other equity instruments may discourage us from granting the size or type of stock option or equity awards that job candidates require to join our company. Failure to attract new personnel or failure to retain and motivate our current personnel, could have a material adverse effect on our business, financial condition and results of operations.
We are dependent on our ability to recruit, retain and develop a very large and diverse workforce. We must transform our culture in order to successfully grow our business.
Our products and services and our operations require a large number of employees. A significant number of employees have joined us in recent years as we continue to grow and expand our business. Our success is dependent on our ability to transform our culture, align our talent with our business needs, engage our employees and inspire our employees to be open to change, to innovate and to maintain member- and client-focus when delivering our services. Our business would be adversely affected if we fail to adequately plan for succession of our executives and senior management; or if we fail to effectively recruit, integrate, retain and develop key talent and/or align our talent with our business needs, in light of the current rapidly changing environment. While we have succession plans in place and we have employment arrangements with a limited number of key executives, these do not guarantee that the services of these or suitable successor executives will continue to be available to us.
We may be subject to future litigation, which could result in substantial liabilities that may exceed our insurance coverage.
All significant medical treatments and procedures, including treatment utilizing our programs, involve the risk of serious injury or death. While we have not been the subject of any such claims, our business entails an inherent risk of claims for personal injuries and substantial damage awards. We cannot control whether individual physicians and therapists will apply the appropriate standard of care in determining how to treat their patients. While our agreements typically require physicians to indemnify us for
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their negligence, there can be no assurance they will be willing and financially able to do so if claims are made. In addition, our license agreements require us to indemnify physicians, hospitals or their affiliates for losses resulting from our negligence.
We currently have insurance coverage for personal injury claims, directors’ and officers’ liability insurance coverage, and errors and omissions insurance. We may not be able to maintain adequate liability insurance at acceptable costs or on favorable terms. We expect that liability insurance will be more difficult to obtain and that premiums will increase over time and as the volume of patients treated with our programs increases. In the event of litigation, we may sustain significant damages or settlement expense (regardless of a claim's merit), litigation expense and significant harm to our reputation.
If third-party payors fail to provide coverage and adequate payment rates for our solutions, our revenue and prospects for profitability will be harmed.
Our future revenue growth will depend in part upon our ability to contract with health plans and other insurance payors for our Ontrak solutions. In addition, insurance payors are increasingly attempting to contain healthcare costs, and may not cover or provide adequate payment for our programs. Adequate insurance reimbursement might not be available to enable us to realize an appropriate return on investment in research and product development, and the lack of such reimbursement could have a material adverse effect on our operations and could adversely affect our revenues and earnings.
We may not be able to achieve promised savings for our Ontrak contracts, which could result in pricing levels insufficient to cover our costs or ensure profitability.
Many of our Ontrak contracts are based upon anticipated or guaranteed levels of savings for our customers and achieving other operational metrics resulting in incentive fees based on savings. If we are unable to meet or exceed promised savings, achieve agreed upon operational metrics, or favorably resolve contract billing and interpretation issues with our customers, we may be required to refund from the amount of fees paid to us any difference between savings that were guaranteed and the savings, if any, which were actually achieved; or we may fail to earn incentive fees based on savings. Accordingly, during or at the end of the contract terms, we may be required to refund some or all of the fees paid for our services. This exposes us to significant risk that contracts negotiated and entered into may ultimately be unprofitable. In addition, managed care operations are at risk for costs incurred to provide agreed upon services under our solution. Therefore, failure to anticipate or control costs could have a materially adverse effect on our business.
Our ability to use our net operating losses to offset future taxable income has been limited in certain cases and may be subject to certain limitations in the future.
Our net operating loss carryforwards ("NOLs") will begin to expire in 2023. These NOLs may be used to offset future taxable income, to the extent we generate any taxable income, and thereby reduce or eliminate our future federal income taxes otherwise payable. Section 382 of the Internal Revenue Code imposes limitations on a corporation's ability to utilize NOLs if it experiences an ownership change as defined in Section 382. In general terms, an ownership change may result from transactions increasing the ownership of certain stockholders in the stock of a corporation by more than 50% over a three-year period. In the event that an ownership change has occurred, or were to occur, utilization of our NOLs would be subject to an annual limitation under Section 382 determined by multiplying the value of our stock at the time of the ownership change by the applicable long-term tax-exempt rate as defined in the Internal Revenue Code. Any unused annual limitation may be carried over to later years. We have experienced ownership changes in the past and can continue to experience ownership changes under Section 382 as a result of events in the past or the issuance of shares of common or preferred stock, or a combination thereof. As a result of such ownership changes, the use of our NOLs, or a portion thereof, against our future taxable income may be subject to an annual limitation under Section 382, which may result in expiration of a portion of our NOLs before utilization.
In order to protect the Company’s significant NOLs, we filed an Amended and Restated Certificate of Incorporation of the Company containing an amendment (the “Protective Amendment”) with the Delaware Secretary of State on October 28, 2019. The Protective Amendment was approved by the Company’s stockholders by written consent dated September 24, 2019.
The Protective Amendment is designed to assist in protecting the long-term value of our accumulated NOLs by limiting certain transfers of our stock. The Protective Amendment’s transfer restrictions generally restrict any direct or indirect transfers of stock if the effect would be to increase the direct or indirect ownership of the stock by any person from less than 4.99% to 4.99% or more of the stock, or increase the percentage of the stock owned directly or indirectly by a person owning or deemed to own 4.99% or more of the stock. Any direct or indirect transfer attempted in violation of the Protective Amendment will be void as of the date of the prohibited transfer as to the purported transferee.
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The Protective Amendment also requires any person attempting to become a holder of 4.99% or more of our common stock to seek the approval of our Board. This may have an unintended “anti-takeover” effect because our Board may be able to prevent any future takeover. Similarly, any limits on the amount of stock that a shareholder may own could have the effect of making it more difficult for shareholders to replace current management. Additionally, because the Protective Amendment may have the effect of restricting a shareholder’s ability to dispose of or acquire our common stock, the liquidity and market value of our common stock might suffer.
The Protective Amendment is not binding with respect to shares of stock issued prior to its adoption unless the holder of such shares has voted in favor of the Protective Amendment and the resulting transfer restriction is noted conspicuously on the certificate representing such shares, or, in the case of uncertificated shares, the registered owners are notified of the Protective Amendment, or such registered owner has actual knowledge of the Protective Amendment. Therefore, even after the effectiveness of the Protective Amendment, we cannot assure you that we will not experience an ownership change as defined in Section 382, including as a result of a waiver or modification by our Board as permitted by the Protective Amendment.
Risks related to our intellectual property
Confidentiality agreements with employees, treating physicians and others may not adequately prevent disclosure of trade secrets and other proprietary information.
In order to protect our proprietary technology and processes, we rely in part on confidentiality provisions in our agreements with employees, treating physicians, and others. These agreements may not effectively prevent disclosure of confidential information and may not provide an adequate remedy in the event of unauthorized disclosure of confidential information. In addition, others may independently discover trade secrets and proprietary information. Costly and time-consuming litigation could be necessary to enforce and determine the scope of our proprietary rights, and failure to obtain or maintain trade secret protection could adversely affect our competitive business position.
We may be subject to claims that we infringe the intellectual property rights of others, and unfavorable outcomes could harm our business.
Our future operations may be subject to claims, and potential litigation, arising from our alleged infringement of patents, trade secrets, trademarks or copyrights owned by other third parties. Within the healthcare, drug and bio-technology industry, many companies actively pursue infringement claims and litigation, which makes the entry of competitive products more difficult. We may experience claims or litigation initiated by existing, better-funded competitors and by other third parties. Court-ordered injunctions may prevent us from continuing to market existing products or from bringing new products to market and the outcome of litigation and any resulting loss of revenues and expenses of litigation may substantially affect our ability to meet our expenses and continue operations.
Risks related to our healthcare industry
Recent changes in insurance and health care laws have created uncertainty in the health care industry.
The Patient Protection and Affordable Care Act as amended by the Health Care and Education Reconciliation Act, each enacted in March 2010, generally known as the Health Care Reform Law, significantly expanded health insurance coverage to uninsured Americans and changed the way health care is financed by both governmental and private payors. Following the 2016 federal elections, which resulted in the election of the Republican presidential nominee and Republican majorities in both houses of Congress, there were renewed legislative efforts to significantly modify or repeal the Health Care Reform Law and certain executive policy changes designed to modify its impact, including the enactment of the Tax Cuts and Jobs Act in December 2017 which repealed the penalties under the Health Care Reform Law for uninsured persons. In light of the recent Supreme Court ruling in California et al. v. Texas et al. in June 2021 generally supporting the Health Care Reform Law, we cannot predict what further reform proposals, if any, will be adopted, when they may be adopted, or what impact they may have on our business. There may also be other risks and uncertainties associated with the Health Care Reform Law. If we fail to comply or are unable to effectively manage such risks and uncertainties, our financial condition and results of operations could be adversely affected.
Our policies and procedures may not fully comply with complex and increasing regulation by state and federal authorities, which could negatively impact our business operations.
The healthcare industry is highly regulated and continues to undergo significant changes as third-party payors, such as Medicare and Medicaid, traditional indemnity insurers, managed care organizations and other private payors, increase efforts to control cost, utilization and delivery of healthcare services. Healthcare companies are subject to extensive and complex federal,
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state and local laws, regulations and judicial decisions. Our failure or the failure of our treating physicians, to comply with applicable healthcare laws and regulations may result in the imposition of civil or criminal sanctions that we cannot afford, or require redesign or withdrawal of our programs from the market.
We may become subject to medical liability claims, which could cause us to incur significant expenses and may require us to pay significant damages if not covered by insurance.
Our business entails the risk of medical liability claims against both our providers and us. Although we carry insurance covering medical malpractice claims in amounts that we believe are appropriate in light of the risks attendant to our business, successful medical liability claims could result in substantial damage awards that exceed the limits of our insurance coverage. We carry professional liability insurance for ourselves, and we separately carry a general insurance policy, which covers medical malpractice claims. In addition, professional liability insurance is expensive and insurance premiums may increase significantly in the future, particularly as we expand our services. As a result, adequate professional liability insurance may not be available to us in the future at acceptable costs or at all.
Any claims made against us that are not fully covered by insurance could be costly to defend against, result in substantial damage awards against us and divert the attention of our management and our providers from our operations, which could have a material adverse effect on our business, financial condition and results of operations. In addition, any claims may adversely affect our business or reputation.
Our business practices may be found to constitute illegal fee-splitting or corporate practice of medicine, which may lead to penalties and adversely affect our business.
Many states, including California where our principal executive offices are located, have laws that prohibit business corporations, such as us, from practicing medicine, exercising control over medical judgments or decisions of physicians or other health care professionals (such as nurses or nurse practitioners), or engaging in certain business arrangements with physicians or other health care professionals, such as employment of physicians and other health care professionals or fee-splitting. The state laws and regulations and administrative and judicial decisions that enumerate the specific corporate practice and fee-splitting rules vary considerably from state to state and are enforced by both the courts and government agencies, each with broad discretion. Courts, government agencies or other parties, including physicians, may assert that we are engaged in the unlawful corporate practice of medicine, fee-splitting, or payment for referrals by providing administrative and other services in connection with our treatment programs. As a result of such allegations, we could be subject to civil and criminal penalties, our contracts could be found invalid and unenforceable, in whole or in part, or we could be required to restructure our contractual arrangements. If so, we may be unable to restructure our contractual arrangements on favorable terms, which would adversely affect our business and operations.
Our business practices may be found to violate anti-kickback, physician self-referral or false claims laws, which may lead to penalties and adversely affect our business.
The healthcare industry is subject to extensive federal and state regulation with respect to kickbacks, physician self-referral arrangements, false claims and other fraud and abuse issues.
The federal anti-kickback law (the “Anti-Kickback Law”) prohibits, among other things, knowingly and willfully offering, paying, soliciting, receiving, or providing remuneration, directly or indirectly, in exchange for or to induce either the referral of an individual, or the furnishing, arranging for, or recommending of an item or service that is reimbursable, in whole or in part, by a federal health care program. “Remuneration” is broadly defined to include anything of value, such as, for example, cash payments, gifts or gift certificates, discounts, or the furnishing of services, supplies, or equipment. The Anti-Kickback Law is broad, and it prohibits many arrangements and practices that are lawful in businesses outside of the health care industry.
Recognizing the breadth of the Anti-Kickback Law and the fact that it may technically prohibit many innocuous or beneficial arrangements within the health care industry, the Office of Inspector General (“OIG”) has issued a series of regulations, known as the “safe harbors.” Compliance with all requirements of a safe harbor immunizes the parties to the business arrangement from prosecution under the Anti-Kickback Law. The failure of a business arrangement to fit within a safe harbor does not necessarily mean that the arrangement is illegal or that the OIG will pursue prosecution. Still, in the absence of an applicable safe harbor, a violation of the Anti-Kickback Law may occur even if only one purpose of an arrangement is to induce referrals. The penalties for violating the Anti-Kickback Law can be severe. These sanctions include criminal and civil penalties, imprisonment, and possible exclusion from the federal health care programs. Many states have adopted laws similar to the Anti-Kickback Law, and some apply to items and services reimbursable by any payor, including private insurers.
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In addition, the federal ban on physician self-referrals, commonly known as the Stark Law, prohibits, subject to certain exceptions, physician referrals of Medicare patients to an entity providing certain “designated health services” if the physician or an immediate family member of the physician has any financial relationship with the entity. A “financial relationship” is created by an investment interest or a compensation arrangement. Penalties for violating the Stark Law include the return of funds received for all prohibited referrals, fines, civil monetary penalties, and possible exclusion from the federal health care programs. In addition to the Stark Law, many states have their own self-referral bans, which may extend to all self-referrals, regardless of the payor.
The federal False Claims Act imposes liability on any person or entity that, among other things, knowingly presents, or causes to be presented, a false or fraudulent claim for payment to the federal government. Under the False Claims Act, a person acts knowingly if he has actual knowledge of the information or acts in deliberate ignorance or in reckless disregard of the truth or falsity of the information. Specific intent to defraud is not required. Violations of other laws, such as the Anti-Kickback Law or the FDA prohibitions against promotion of off-label uses of drugs, can lead to liability under the federal False Claims Act. The qui tam provisions of the False Claims Act allow a private individual to bring an action on behalf of the federal government and to share in any amounts paid by the defendant to the government in connection with the action. The number of filings of qui tam actions has increased significantly in recent years. When an entity is determined to have violated the False Claims Act, it may be required to pay up to three times the actual damages sustained by the government, plus civil penalties of between $5,500 and $11,000 for each false claim. Conduct that violates the False Claims Act may also lead to exclusion from the federal health care programs. Given the number of claims likely to be at issue, potential damages under the False Claims Act for even a single inappropriate billing arrangement could be significant. In addition, various states have enacted similar laws modeled after the False Claims Act that apply to items and services reimbursed under Medicaid and other state health care programs, and, in several states, such laws apply to claims submitted to all payors.
On May 20, 2009, the Federal Enforcement and Recovery Act of 2009, or FERA, became law, and it significantly amended the federal False Claims Act. Among other things, FERA eliminated the requirement that a claim must be presented to the federal government. As a result, False Claims Act liability extends to any false or fraudulent claim for government money, regardless of whether the claim is submitted to the government directly, or whether the government has physical custody of the money. FERA also specifically imposed False Claims Act liability if an entity “knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.” As a result, the knowing and improper failure to return an overpayment can serve as the basis for a False Claims Act action. In March 2010, Congress passed the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010, collectively the ACA, which also made sweeping changes to the federal False Claims Act. The ACA also established that Medicare and Medicaid overpayments must be reported and returned within 60 days of identification or when any corresponding cost report is due.
Finally, the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations created the crimes of health care fraud and false statements relating to health care matters. The health care fraud statute prohibits knowingly and willfully executing a scheme to defraud any health care benefit program, including a private insurer. The false statements statute prohibits knowingly and willfully falsifying, concealing, or covering up a material fact or making any materially false, fictitious, or fraudulent statement in connection with the delivery of or payment for health care benefits, items, or services. A violation of this statute is a felony and may result in fines, imprisonment, or exclusion from the federal health care programs.
Federal or state authorities may claim that our fee arrangements, our agreements and relationships with contractors, hospitals and physicians, or other activities violate fraud and abuse laws and regulations. If our business practices are found to violate any of these laws or regulations, we may be unable to continue with our relationships or implement our business plans, which would have an adverse effect on our business and results of operations. Further, defending our business practices could be time consuming and expensive, and an adverse finding could result in substantial penalties or require us to restructure our operations, which we may not be able to do successfully.
Our business practices may be subject to state regulatory and licensure requirements.
Our business practices may be regulated by state regulatory agencies that generally have discretion to issue regulations and interpret and enforce laws and rules. These regulations can vary significantly from jurisdiction to jurisdiction, and the interpretation of existing laws and rules also may change periodically. Some of our business and related activities may be subject to state health care-related regulations and requirements, including managed health care, utilization review (UR) or third-party administrator-related regulations and licensure requirements. These regulations differ from state to state, and may contain network, contracting, and financial and reporting requirements, as well as specific standards for delivery of services, payment of claims, and adequacy of health care professional networks. If a determination is made that we have failed to comply with any applicable state laws or regulations, our business, financial condition and results of operations could be adversely affected.
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If our providers or experts are characterized as employees, we would be subject to employment and withholding liabilities.
We structure our relationships with our providers and experts in a manner that we believe results in an independent contractor relationship, not an employee relationship. An independent contractor is generally distinguished from an employee by his or her degree of autonomy and independence in providing services. A high degree of autonomy and independence is generally indicative of a contractor relationship, while a high degree of control is generally indicative of an employment relationship. Although we believe that our providers and experts are properly characterized as independent contractors, tax or other regulatory authorities may in the future challenge our characterization of these relationships. If such regulatory authorities or state, federal or foreign courts were to determine that our providers or experts are employees, and not independent contractors, we would be required to withhold income taxes, to withhold and pay social security, Medicare and similar taxes and to pay unemployment and other related payroll taxes. We would also be liable for unpaid past taxes and subject to penalties. As a result, any determination that our providers or experts are our employees could have a material adverse effect on our business, financial condition and results of operations.
We may be subject to healthcare anti-fraud initiatives, which may lead to penalties and adversely affect our business.
State and federal government agencies are devoting increased attention and resources to anti-fraud initiatives against healthcare providers and the entities and individuals with whom they do business, and such agencies may define fraud expansively to include our business practices, including the receipt of fees in connection with a healthcare business that is found to violate any of the complex regulations described above. While to our knowledge we have not been the subject of any anti-fraud investigations, if such a claim were made, defending our business practices could be time consuming and expensive and an adverse finding could result in substantial penalties or require us to restructure our operations, which we may not be able to do successfully.
Our use and disclosure of patient information is subject to privacy and security regulations, which may result in increased costs.
In providing administrative services to healthcare providers and operating our treatment programs, we may collect, use, disclose, maintain and transmit patient information in ways that will be subject to many of the numerous state, federal and international laws and regulations governing the collection, use, disclosure, storage, privacy and security of patient-identifiable health information, including the administrative simplification requirements of the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (HIPAA) and the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH). The HIPAA Privacy Rule restricts the use and disclosure of certain patient information (“Protected Health Information” or “PHI”), and requires safeguarding that information. The HIPAA Security Rule and HITECH establish elaborate requirements for safeguarding PHI transmitted or stored electronically. HIPAA applies to covered entities, which may include healthcare facilities and also includes health plans that will contract for the use of our programs and our services. HIPAA and HITECH require covered entities to bind contractors that use or disclose protected health information (or “Business Associates”) to compliance with certain aspects of the HIPAA Privacy Rule and all of the HIPAA Security Rule. In addition to contractual liability, Business Associates are also directly subject to regulation by the federal government. Direct liability means that we are subject to audit, investigation and enforcement by federal authorities. HITECH imposes breach notification obligations requiring us to report breaches of “Unsecured Protected Health Information” or PHI that has not been encrypted or destroyed in accordance with federal standards. Business Associates must report such breaches so that their covered entity customers may in turn notify all affected patients, the federal government, and in some cases, local or national media outlets. We may be required to indemnify our covered entity customers for costs associated with breach notification and the mitigation of harm resulting from breaches that we cause. If we are providing management services that include electronic billing on behalf of a physician practice or facility that is a covered entity, we may be required to conduct those electronic transactions in accordance with the HIPAA regulations governing the form and format of those transactions. Services provided under our Ontrak solution not only require us to comply with HIPAA and HITECH but also Title 42 Part 2 of the Code of Federal Regulations (“Part 2”). Part 2 is a federal, criminal law that severely restricts our ability to use and disclose drug and alcohol treatment information obtained from federally-supported treatment facilities. Our operations must be carefully structured to avoid liability under this law. Our Ontrak solution qualifies as a federally funded treatment facility which requires us to disclose information on members only in compliance with Title 42.
In addition to the federal privacy regulations, there are a number of state laws governing the privacy and security of health and personal information. The penalties for violation of these laws vary widely and the area is rapidly evolving.
In 2018, California passed the California Consumer Privacy Act (the “CCPA”), which gives consumers significant rights over the use of their personal information, including the right to object to the “sale” of their personal information. In 2020, Californians
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voted to enact the California Privacy Rights Act (CPRA), which amends the CCPA by expanding consumers' rights in their personal information and creating a new governmental agency to interpret and enforce the statute. Most provisions of the CPRA will become effective on January 1, 2023. While information covered by HIPAA is generally exempt from the applicability of the CCPA as amended by the CPRA, the rights of consumers under the CCPA may restrict our ability to use personal information in connection with our business operations. The CCPA also provides a private right of action for certain security breaches.
In 2019, New York passed a law known as the SHIELD Act, which expands data breach reporting obligations and requires companies to have robust data security programs in place. More recently, New York and other states, including Washington, have introduced significant privacy bills, and Congress is debating federal privacy legislation, which if passed, may restrict our business operations and require us to incur additional costs for compliance.
In addition, several foreign countries and governmental bodies, including the E.U., Brazil and Canada, have laws and regulations concerning the collection and use of personally identifiable information obtained from their residents, including identifiable health information, which are often more restrictive than those in the U.S. Laws and regulations in these jurisdictions apply broadly to the collection, use, storage, disclosure and security of personally identifiable information, including health information, identifying, or which may be used to identify, an individual, such as names, email addresses and, in some jurisdictions, Internet Protocol (IP) addresses, device identifiers and other data. Although we currently conduct business only in the United States of America, these laws and regulations could become applicable to us in the event we expand our operations into other countries. These and other obligations may be modified and interpreted in different ways by courts, and new laws and regulations may be enacted in the future.
Within the EEA, the General Data Protection Regulation ("GDPR") took full effect on May 25, 2018, superseding the 1995 European Union Data Protection Directive and becoming directly applicable across E.U. member states. The GDPR includes more stringent operational requirements for processors and controllers of personal data (including health information) established in and outside of the EEA, imposes significant penalties for non-compliance and has broader extra-territorial effect. As the GDPR is a regulation rather than a directive, it applies throughout the EEA, but permits member states to enact supplemental requirements if they so choose. Noncompliance with the GDPR can trigger fines of up to the greater of €20 million or 4% of global annual revenues. Further, a Data Protection Act substantially implementing the GDPR was enacted in the U.K., effective in May 2018. It remains unclear, however, how U.K. data protection laws or regulations will develop in the medium to longer term and how data transfers to and from the U.K. will be regulated in light of the U.K.'s withdrawal from the E.U. In addition, some countries are considering or have enacted legislation requiring local storage and processing of data that could increase the cost and complexity of delivering our services.
We believe that we have taken the steps required of us to comply with laws governing the privacy and security of personal information, including health information privacy and security laws and regulations, in all applicable jurisdictions, both state and federal. However, we may not be able to maintain compliance in all jurisdictions where we do business. Failure to maintain compliance, or changes in state or federal privacy and security laws could result in civil and/or criminal penalties and could have a material adverse effect on our business, including significant reputational damage associated with a breach. Under HITECH, we are subject to prosecution or administrative enforcement and increased civil and criminal penalties for non-compliance, including a four-tiered system of monetary penalties. We are also subject to enforcement by state attorneys general who were given authority to enforce HIPAA under HITECH, and who have authority to enforce state-specific data privacy and security laws. If regulations change, if we expand the territorial scope of our operations, or if it is determined that we are not in compliance with privacy regulations, we may be required to modify aspects of our program, which may adversely affect program results and our business or profitability.
Security breaches, loss of data and other disruptions could compromise sensitive information related to our business, prevent us from accessing critical information or expose us to liability, which could adversely affect our business and our reputation.
In the ordinary course of our business, we collect and store sensitive data, including legally protected patient health information, personally identifiable information about our employees, intellectual property, and proprietary business information. We manage and maintain our applications and data utilizing an off-site co-location facility. These applications and data encompass a wide variety of business critical information including research and development information, commercial information and business and financial information.
The secure processing, storage, maintenance and transmission of this critical information is vital to our operations and business strategy, and we devote significant resources to protecting such information. Although we take measures to protect sensitive information from unauthorized access or disclosure, our information technology and infrastructure may be vulnerable to attacks by hackers, viruses, breaches or interruptions due to employee error or malfeasance, terrorist attacks, earthquakes, fire,
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flood, other natural disasters, power loss, computer systems failure, data network failure, Internet failure or lapses in compliance with privacy and security mandates. We may be subject to distributed denial of service (DDOS) attacks by hackers aimed at disrupting service to patients and customers. Our response to such DDOS attacks may be insufficient to protect our network and systems. In addition, there has been a continuing increase in the number of malicious software attacks in a wide variety of different industries, including malware, ransomware, and email phishing scams, particularly since the start of the COVID-19 pandemic. Any such virus, breach or interruption could compromise our networks and the information stored there could be accessed by unauthorized parties, publicly disclosed, lost or stolen. We have measures in place that are designed to detect and respond to such security incidents and breaches of privacy and security mandates. Nonetheless, we cannot guarantee our backup systems, regular data backups, security protocols, network protection mechanisms and other procedures currently in place, or that may be in place in the future, will be adequate to prevent or remedy network and service interruption, system failure, damage to one or more of our systems, data loss, security breaches or other data security incidents. We might be required to expend significant capital and resources to protect against or address such incidents. Any access, disclosure or other loss of information could result in legal claims or proceedings, liability under laws that protect the privacy of personal information (such as HIPAA and state data security laws), government enforcement actions and regulatory penalties. We may also be required to indemnify our customers for costs associated with having their data on our system breached. Unauthorized access, loss or dissemination could also interrupt our operations, including our ability to provide treatment, bill our customers, provide customer support services, conduct research and development activities, process and prepare company financial information, manage various general and administrative aspects of our business and damage our reputation, or we may lose one or more of our customers, especially if they felt their data may be breached, any of which could adversely affect our business.
Certain of our professional healthcare employees, such as nurses, must comply with individual licensing requirements.
All of our healthcare professionals who are subject to licensing requirements, such as our care coaches, are licensed in the state in which they provide professional services in person. While we believe our nurses provide coaching and not professional services, one or more states may require our healthcare professionals to obtain licensure if providing services telephonically across state lines to the state’s residents. Healthcare professionals who fail to comply with these licensure requirements could face fines or other penalties for practicing without a license, and we could be required to pay those fines on behalf of our healthcare professionals. If we are required to obtain licenses for our nurses in states where they provide telephonic coaching, it would significantly increase the cost of providing our product. In addition, new and evolving agency interpretations, federal or state legislation or regulations, or judicial decisions could lead to the implementation of out-of-state licensure requirements in additional states, and such changes would increase the cost of services and could have a material effect on our business.
Risks related to our Note Agreement
The terms of our Note Agreement place restrictions on our operating and financial flexibility, and failure to comply with covenants or to satisfy certain conditions of the agreement may result in acceleration of our repayment obligations, which could significantly harm our liquidity, financial condition, operating results, business and prospects and cause the price of our securities to decline.
On September 24, 2019 (the “Closing Date”), we entered into the Note Agreement (as amended to date, the "Note Agreement"), by and among us, certain of our subsidiaries as guarantors, Goldman Sachs Specialty Lending Holdings, Inc. (with any other purchasers party thereto from time to time, collectively the “Holder”) and Goldman Sachs Specialty Lending Group, L.P., as collateral agent, in connection with the sale of up to $45.0 million aggregate principal amount of senior secured notes (the “2024 Notes”). On the Closing Date, we issued an aggregate of $35.0 million in principal amount of 2024 Notes and, on August 25, 2020, we issued an additional $10.0 million in principal amount of 2024 Notes.
The Note Agreement contains customary covenants, including, among others, covenants that restrict the our ability to incur debt, grant liens, make certain investments and acquisitions, pay dividends, repurchase equity interests, repay certain debt, amend certain contracts, enter into affiliate transactions and asset sales or make certain equity issuances, and covenants that require the us to, among other things, provide annual, quarterly and monthly financial statements, together with related compliance certificates, maintain its property in good repair, maintain insurance and comply with applicable laws. The Note Agreement also includes covenants with respect to our maintenance of certain financial ratios, including a fixed charge coverage ratio, leverage ratio and consolidated liquidity as well as minimum levels of consolidated adjusted EBITDA.
The Note Agreement and the 2024 Notes could have important consequences for us and our stockholders. For example, the Notes require a balloon payment at maturity in September 2024, which may require us to dedicate a substantial portion of our uncommitted cash flow from operations to this future payment if we feel we cannot be successful in our ability to refinance in the
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future, thereby further reducing the availability of our cash flow to fund working capital, capital expenditures, and acquisitions, and for other general corporate purposes. In addition, our indebtedness could:
•increase our vulnerability to adverse economic and competitive pressures in our industry;
•place us at a competitive disadvantage compared to our competitors that have less debt;
•limit our flexibility in planning for, or reacting to, changes in our business and our industry; and
•limit our ability to borrow additional funds on terms that are acceptable to us or at all.
The Note Agreement contains restrictive covenants that will restrict our operational flexibility and require that we maintain specified financial ratios. If we cannot comply with these covenants, we may be in default under the Note Agreement.
The Note Agreement contains restrictions and limitations on our ability to engage in activities that may be in our long-term best interests. The Note Agreement contains affirmative and negative covenants that limit and restrict, among other things, our ability to:
•incur additional debt;
•sell assets;
•issue equity securities;
•pay dividends or repurchase equity securities;
•incur liens or other encumbrances;
•make certain restricted payments and investments;
•acquire other businesses; and
•merge or consolidate.
The Note Agreement contains a fixed charge coverage ratio covenant, a leverage ratio covenant and minimum liquidity covenant as well as minimum levels of consolidated adjusted EBITDA. Events beyond our control could affect our ability to meet these and other covenants under the Note Agreement. We have in the past required waivers to or modifications of such covenant requirements which the lender has granted. There can be no assurance that we will not require additional such waivers or modifications or on what terms the lender will be willing to provide them, if at all. The Note Agreement also contains customary events of default, including, among others, payment default, bankruptcy events, cross-default, breaches of covenants and representations and warranties, change of control, judgment defaults and an ownership change within the meaning of Section 382 of the Code. Our failure to comply with our covenants and other obligations under the Note Agreement may result in an event of default thereunder. A default, if not cured or waived, may permit acceleration of the Notes. If the indebtedness represented by the Notes is accelerated, we cannot be certain that we will have sufficient funds available to pay the accelerated indebtedness (together with accrued interest and fees), or that we will have the ability to refinance the accelerated indebtedness on terms favorable to us or at all. This could have serious consequences to our financial condition, operating results, and business, and could cause us to become insolvent or enter bankruptcy proceedings, and shareholders may lose all or a portion of their investment because of the priority of the claims of our creditors on our assets.
If we are unable to generate, borrow or raise sufficient cash to make payments on our indebtedness, our financial condition would be materially harmed, our business could fail, and shareholders may lose all of their investment.
Our ability to make scheduled payments on or to refinance our obligations will depend on our financial and operating performance, which will be affected by economic, financial, competitive, business, and other factors, some of which are beyond our control. We cannot assure you that our business will generate sufficient cash flow from operations to service our indebtedness or to fund our other liquidity needs. If we are unable to meet our debt obligations or fund our other liquidity needs, we may need to restructure or refinance all or a portion of our indebtedness on or before maturity or sell certain of our assets. We cannot assure you that we will be able to restructure or refinance any of our indebtedness on commercially reasonable terms, if at all, which could cause us to default on our debt obligations and impair our liquidity. Any refinancing of our indebtedness could be at higher interest rates and may require us to comply with more onerous covenants, which could further restrict our business operations.
Increases in interest rates could adversely affect our results from operations and financial condition.
The Notes bear interest at either a floating rate plus an applicable margin in the case of Notes subject to cash interest payments or a floating rate plus a slightly higher applicable margin in the case of Notes as to which current interest has been capitalized during the first twelve months following the Closing Date, at the Company’s option. The applicable margins are subject to stepdowns, in each case, following the achievement of certain financial ratios. As a result, an increase in prevailing interest rates would have an effect on the interest rates charged on the Notes, which rise and fall upon changes in interest rates. If
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prevailing interest rates or other factors result in higher interest rates, the increased interest expense would adversely affect our cash flow and our ability to service our indebtedness.
Risks related to our preferred stock
Our Series A Preferred Stock ranks junior to all of our indebtedness and other liabilities.
In the event of our bankruptcy, liquidation, dissolution or winding-up of our affairs, our assets will be available to pay obligations on the Series A Preferred Stock only after all of our indebtedness and other liabilities have been paid. The rights of holders of the Series A Preferred Stock to participate in the distribution of our assets will rank junior to the prior claims of our current and future creditors and any future series or class of preferred stock we may issue that ranks senior to the Series A Preferred Stock. Also, the Series A Preferred Stock effectively ranks junior to all existing and future indebtedness and to the indebtedness and other liabilities of our existing subsidiaries and any future subsidiaries. Our existing subsidiaries are, and future subsidiaries would be, separate legal entities and have no legal obligation to pay any amounts to us in respect of dividends due on the Series A Preferred Stock.
At September 30, 2021, our total liabilities equaled $63.5 million. If we are forced to liquidate our assets to pay our creditors, we may not have sufficient assets to pay amounts due on any or all of the Series A Preferred Stock then outstanding.
Certain of our existing or future debt instruments may restrict the authorization, payment or setting apart of dividends on the Series A Preferred Stock. The Note Agreement restricts the payment of dividends on the Series A Preferred Stock and contains events of default which could result in acceleration of such indebtedness upon the occurrence of certain events, including failure to meet certain financial covenants and the payment of dividends on, or redemption amounts in respect of, the Series A Preferred Stock in violation of the Note Agreement. While the conditional amendment to the Note Agreement entered into in connection with our issuance of the Series A Preferred Stock (the “Conditional Amendment”) permits the payment of dividends on the Series A Preferred Stock for the first eight periods following issuance, thereafter we may only pay such dividends so long as there is no default or event of default under the Note Agreement. Accordingly, there can be no assurance that we will remain in compliance with the terms of the Conditional Amendment, and if we default, we may be contractually prohibited from paying dividends on the Series A Preferred Stock or any amounts in redemption of or otherwise in respect of, the Series A Preferred Stock. Also, future offerings of debt or senior equity securities may adversely affect the market price of the Series A Preferred Stock. If we decide to issue debt or senior equity securities in the future, it is possible that these securities will be governed by an indenture or other instruments containing covenants restricting our operating flexibility. Additionally, any convertible or exchangeable securities that we issue in the future may have rights, preferences and privileges more favorable than those of the Series A Preferred Stock and may result in dilution to owners of the Series A Preferred Stock. We and, indirectly, our stockholders, will bear the cost of issuing and servicing such securities. Because our decision to issue debt or equity securities in any future offering will depend on market conditions and other factors beyond our control, we cannot predict or estimate the amount, timing or nature of our future offerings. The holders of the Series A Preferred Stock will bear the risk of our future offerings, which may reduce the market price of the Series A Preferred Stock and will dilute the value of their holdings in us.
We may not be able to pay dividends on the Series A Preferred Stock if we have insufficient cash or available ‘surplus’ as defined under Delaware law to make such dividend payments.
Our ability to pay cash dividends on the Series A Preferred Stock requires us to have either net profits or positive net assets (total assets less total liabilities) over our capital, and that we have sufficient working capital in order to be able to pay our debts as they become due in the usual course of business. Our ability to pay dividends may also be impaired if any of the risks described in this Quarterly Report on Form 10-Q, including the documents incorporated by reference herein, were to occur. Also, payment of our dividends depends upon our financial condition and other factors as our board of directors may deem relevant from time to time. We cannot assure you that our businesses will generate sufficient cash flow from operations or that future borrowings will be available to us in an amount sufficient to enable us to make distributions on our common stock, if any, and preferred stock, including the Series A Preferred Stock to pay our indebtedness or to fund our other liquidity needs.
We have established a segregated account that was funded with a portion of the proceeds from sales of Series A Preferred Stock to pre-fund quarterly dividend payments on the Series A Preferred Stock until August 2022, although the payment of such amounts on deposit to holders of the Series A Preferred Stock is subject to compliance with applicable laws and with the foregoing limitations. Additionally, once the funds in the segregated account are exhausted, there can be no assurance that we will have sufficient cash flow from operations to continue such dividend payments. The amounts on deposit are also assets of our consolidated entity and while we have agreed not to use such amount for any corporate purposes other than payments of dividends
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on the Series A Preferred Stock, such account will be subject to a lien in favor of the collateral agent for the 2024 Notes and otherwise be available to our creditors generally in the event holders of our indebtedness or other obligations arising in the ordinary course of business seek to pursue remedies under bankruptcy or insolvency laws or otherwise. In addition, our Board of Directors may determine that the use of such amount on deposit for other corporate purposes is required pursuant to the exercise of their fiduciary duties to our common stockholders. You should be aware that the pre-funded dividends may not be available to make such payments in the amounts and at the times required under the terms of the Series A Preferred Stock offering.
Our Certificate of Incorporation contains provisions limiting the transferability and conversion of the Series A Preferred stock.
As noted above, the Protective Amendment is designed to assist in protecting the long-term value of our accumulated NOLs by limiting certain transfers of our common stock and certain of our other securities coming within the rules of the Internal Revenue Service under Section 382, including the Series A Preferred Stock as such does not meet the exception provided by Section 1504(a) of the Code and related Treasury Regulation §1.382.-2(a)(3)(i) (collectively, “382 Stock”). While the Board of Directors has approved the issuance of our Series A Preferred Stock after determining that such issuance is not likely to result in a prohibited ownership shift, the Protective Amendment will continue to apply to the Series A Preferred Stock after issuance, including the restrictions on transfer and exchange.
The market for our Series A Preferred Stock may not provide investors with adequate liquidity.
Our Series A Preferred Stock is listed on the Nasdaq Global Market. However, the trading market for the Series A Preferred Stock may not be maintained and may not provide investors with adequate liquidity. The liquidity of the market for the Series A Preferred Stock depends on a number of factors, including prevailing interest rates, our financial condition and operating results, the number of holders of the Series A Preferred Stock, the market for similar securities and the interest of securities dealers in making a market in the Series A Preferred Stock. We cannot predict the extent to which investor interest in our Company will maintain the trading market in our Series A Preferred Stock, or how liquid that market will be. If an active market is not maintained, investors may have difficulty selling shares of our Series A Preferred Stock.
Future issuances of preferred stock may reduce the value of the Series A Preferred Stock.
We may sell additional shares of preferred stock on terms that may differ from the Series A Preferred Stock. Such shares could rank on parity with or, subject to the voting rights referred to above (with respect to issuances of new series of preferred stock), senior to the Series A Preferred Stock as to distribution rights or rights upon liquidation, winding up or dissolution. The subsequent issuance of additional shares of Series A Preferred Stock, or the creation and subsequent issuance of additional classes of preferred stock on parity with the Series A Preferred Stock, could dilute the interests of the holders of Series A Preferred Stock offered hereby. Any issuance of preferred stock that is senior to the Series A Preferred Stock would not only dilute the interests of the holders of Series A Preferred Stock, but also could affect our ability to pay distributions on, redeem or pay the liquidation preference on the Series A Preferred Stock.
Market interest rates may materially and adversely affect the value of the Series A Preferred Stock.
One of the factors that influences the price of the Series A Preferred Stock is the dividend yield on the Series A Preferred Stock (as a percentage of the market price of the Series A Preferred Stock) relative to market interest rates. Continued increase in market interest rates, which are currently at low levels relative to historical rates, may lead prospective purchasers of the Series A Preferred Stock to expect a higher dividend yield (and higher interest rates would likely increase our borrowing costs and potentially decrease funds available for dividend payments). Thus, higher market interest rates could cause the market price of the Series A Preferred Stock to materially decrease.
The special exchange right that the Series A Preferred Stock is entitled to may make it more difficult for a party to acquire us or discourage a party from acquiring us.
The Series A Preferred Stock special exchange right may have the effect of discouraging a third party from making an acquisition proposal for us or of delaying, deferring or preventing certain of our change of control transactions under circumstances that otherwise could provide the holders of our Series A Preferred Stock with the opportunity to realize a premium over the then-current market price of such equity securities or that stockholders may otherwise believe is in their best interests.
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Holders of the Series A Preferred Stock may be unable to use the dividends-received deduction and may not be eligible for the preferential tax rates applicable to “qualified dividend income.”
Distributions paid to corporate U.S. holders of the Series A Preferred Stock may be eligible for the dividends-received deduction, and distributions paid to non-corporate U.S. holders of the Series A Preferred Stock may be subject to tax at the preferential tax rates applicable to “qualified dividend income,” if we have current or accumulated earnings and profits, as determined for U.S. federal income tax purposes. We do not currently have any accumulated earnings and profits. Additionally, we may not have sufficient current earnings and profits during future fiscal years for the distributions on the Series A Preferred Stock to qualify as dividends for U.S. federal income tax purposes. If the distributions fail to qualify as dividends, U.S. holders would be unable to use the dividends-received deduction and may not be eligible for the preferential tax rates applicable to “qualified dividend income.”
Holders of the Series A Preferred Stock may be subject to tax if we make or fail to make certain adjustments to the Exchange Rate of the Series A Preferred Stock even though you do not receive a corresponding cash dividend.
The exchange rate for the Series A Preferred Stock special exchange right is subject to adjustment in certain circumstances. A failure to adjust (or to adjust adequately) such exchange rate after an event that increases your proportionate interest in us could be treated as a deemed taxable dividend to you. If you are a non-U.S. holder, any deemed dividend may be subject to U.S. federal withholding tax at a 30% rate, or such lower rate as may be specified by an applicable treaty, which may be set off against subsequent payments on the Series A Preferred Stock. In April 2016, the Internal Revenue Service issued new proposed income tax regulations in regard to the taxability of changes in exchange rights that will apply to the Series A Preferred Stock when published in final form and may be applied to us before final publication in certain instances.
Our revenues, operating results and cash flows may fluctuate in future periods, and we may fail to meet investor expectations, which may cause the price of our Series A Preferred Stock to decline.
Variations in our quarterly and year-end operating results are difficult to predict, and our income and cash flows may fluctuate significantly from period to period. If our operating results fall below the expectations of investors or securities analysts, the price of our Series A Preferred Stock could decline substantially. Specific factors that may cause fluctuations in our operating results include:
The Series A Preferred Stock represents perpetual equity interests in us, and it has no maturity or mandatory redemption date and are not redeemable at the option of investors under any circumstances. As a result, the Series A Preferred Stock will not give rise to a claim for payment of a principal amount at a particular date. As a result, holders of the Series A Preferred Stock may be required to bear the financial risks of an investment in the Series A Preferred Stock for an indefinite period of time. In addition, the Series A Preferred Stock will rank junior to all our current and future indebtedness and other liabilities. The Series A Preferred Stock will also rank junior to any other senior securities we may issue in the future with respect to assets available to satisfy claims against us.
The Series A Preferred Stock has not been rated.
We have not sought to obtain a rating for the Series A Preferred Stock. No assurance can be given, however, that one or more rating agencies might not independently determine to issue such a rating or that such a rating, if issued, would not adversely affect the market price of the Series A Preferred Stock. Also, we may elect in the future to obtain a rating for the Series A Preferred Stock, which could adversely affect the market price of the Series A Preferred Stock. Ratings only reflect the views of the rating agency or agencies issuing the ratings and such ratings could be revised downward, placed on a watch list or withdrawn entirely at the discretion of the issuing rating agency if in its judgment circumstances so warrant. Any such downward revision, placing on a watch list or withdrawal of a rating could have an adverse effect on the market price of the Series A Preferred Stock.
The market price of the Series A Preferred Stock could be substantially affected by various factors.
The market price of the Series A Preferred Stock depends on many factors, which may change from time to time, including:
• prevailing interest rates, increases in which may have an adverse effect on the market price of the Series A Preferred Stock;
• trading prices of similar securities;
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• our history of timely dividend payments;
• the annual yield from dividends on the Series A Preferred Stock as compared to yields on other financial instruments;
• general economic and financial market conditions;
• government action or regulation;
• the financial condition, performance and prospects of us and our competitors;
• changes in financial estimates or recommendations by securities analysts with respect to us or our competitors in our industry;
• our issuance of additional preferred equity or debt securities;
• actual or anticipated variations in quarterly operating results of us and our competitors; and
• the ongoing impact of the global COVID-19 pandemic.
As a result of these and other factors, holders of the Series A Preferred Stock may experience a decrease, which could be substantial and rapid, in the market price of the Series A Preferred Stock, including decreases unrelated to our operating performance or prospects.
A holder of Series A Preferred Stock has extremely limited voting rights.
The voting rights for a holder of Series A Preferred Stock are limited. Our shares of common stock are the only class of our securities that carry full voting rights. Voting rights for holders of the Series A Preferred Stock exist primarily with respect to voting on amendments to our certificate of incorporation, including the certificate of designations relating to the Series A Preferred Stock, that materially and adversely affect the rights of the holders of Series A Preferred Stock or authorize, increase or create additional classes or series of our capital stock that are senior to the Series A Preferred Stock. Other than the limited circumstances described in the Certificate of Designations establishing the Series A Preferred Stock and except to the extent required by law, holders of Series A Preferred Stock do not have any voting rights.
Risks related to our common stock
Failure to maintain effective internal controls could adversely affect our operating results and the market for our common stock.
Section 404 of the Sarbanes-Oxley Act of 2002 requires that we maintain internal control over financial reporting that meets applicable standards. As with many smaller companies with small staff, material weaknesses in our financial controls and procedures may be discovered. If we are unable, or are perceived as unable, to produce reliable financial reports due to internal control deficiencies, investors could lose confidence in our reported financial information and operating results, which could result in a negative market reaction and adversely affect our ability to raise capital.
Approximately 48% of our outstanding common stock is beneficially owned by our Executive Chairman, who has the ability to substantially influence the election of directors and other matters submitted to stockholders.
9,114,155 shares are beneficially held of record by Acuitas Group Holdings, LLC (“Acuitas”), whose sole managing member is our Executive Chairman, which represents beneficial ownership of approximately 48% of our outstanding shares of common stock. As a result, he has and is expected to continue to have the ability to significantly influence the election of our Board of Directors and the outcome of all other matters submitted to our stockholders. His interest may not always coincide with our interests or the interests of other stockholders, and he may act in a manner that advances his best interests and not necessarily those of other stockholders. One consequence to this substantial influence or control is that it may be difficult for investors to remove management of our Company. It could also deter unsolicited takeovers, including transactions in which stockholders might otherwise receive a premium for their shares over then current market prices.
Our stock price may be subject to substantial volatility, and the value of our stockholders' investment may decline.
The price at which our common stock trades fluctuates as a result of a number of factors, including the number of shares available for sale in the market, quarterly variations in our operating results and actual or anticipated announcements of our Ontrak solution, announcements regarding new or discontinued Ontrak solution contracts, new products or services by us or competitors, regulatory investigations or determinations, acquisitions or strategic alliances by us or our competitors, recruitment or departures of key personnel, the gain or loss of significant customers, changes in the estimates of our operating performance, actual or threatened litigation, market conditions in our industry and the economy as a whole.
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Numerous factors, including many over which we have no control, may have a significant impact on the market price of our common stock, including:
● announcements of new products or services by us or our competitors;
● current events affecting the political, economic and social situation in the United States;
● trends in our industry and the markets in which we operate;
● changes in financial estimates and recommendations by securities analysts;
● acquisitions and financings by us or our competitors;
● the gain or loss of a significant customer;
● quarterly variations in operating results;
● the operating and stock price performance of other companies that investors may consider to be comparable;
● purchases or sales of blocks of our securities; and
● issuances of stock.
We have used the market price of our common stock to establish future payment obligations to stockholders of acquisition targets in the past and may continue to do so in the future; any decline in the market price regardless of whether due to our performance or external market dynamics would give rise to a payment obligation to such holders. Furthermore, stockholders may initiate securities class action lawsuits if the market price of our stock drops significantly, which may cause us to incur substantial costs and could divert the time and attention of our management.
Future sales of common stock by existing stockholders, or the perception that such sales may occur, could depress our stock price.
The market price of our common stock could decline as a result of sales by, or the perceived possibility of sales by, our existing stockholders. Most of our outstanding shares are eligible for public resale pursuant to Rule 144 under the Securities Act of 1933, as amended. As of September 30, 2021, approximately 9.1 million shares of our common stock are held by our affiliates and may be sold pursuant to an effective registration statement or in accordance with the volume and other limitations of Rule 144 or pursuant to other exempt transactions. Future sales of common stock by significant stockholders, including those who acquired their shares in private placements or who are affiliates, or the perception that such sales may occur, could depress the price of our common stock.
Future issuances of common stock and hedging activities may depress the trading price of our common stock.
Any future issuance of equity securities, including the issuance of shares upon direct registration, upon satisfaction of our obligations, compensation of vendors, exercise of outstanding warrants, or effectuation of a reverse stock split, could dilute the interests of our existing stockholders, and could substantially decrease the trading price of our common stock. As of September 30, 2021, we had outstanding options to purchase 3,486,750 shares of our common stock at exercise prices ranging from $7.50 to $86.57 per share and warrants to purchase 49,803 shares of our common stock at exercise prices ranging from $4.80 to $17.32 per share. Also, as of September 30, 2021, we had a total of 141,500 unvested RSUs outstanding. We may issue equity securities in the future for a number of reasons, including to finance our operations and business strategy, in connection with acquisitions, to adjust our ratio of debt to equity, to satisfy our obligations upon the exercise of outstanding warrants or options or for other reasons.
There may be future sales or other dilution of our equity, which may adversely affect the market price of our common stock.
In the future, we may need to raise additional funds through public or private financing, which might include sales of equity securities. The issuance of any additional shares of common stock or securities convertible into, exchangeable for, or that represent the right to receive common stock or the exercise of such securities could be substantially dilutive to holders of shares of our common stock. Holders of shares of our common stock have no preemptive rights that entitle holders to purchase their pro rata share of any offering of shares of any class or series. The market price of our common stock could decline as a result of sales of shares of our common stock made after this offering or the perception that such sales could occur. Because our decision to issue securities in any future offering will depend on market conditions and other factors beyond our control, we cannot predict or estimate the amount, timing or nature of our future offerings. Thus, our stockholders bear the risk of our future offerings reducing the market price of our common stock and diluting their interests in our Company.
Provisions in our certificate of incorporation and Delaware law could discourage a change in control, or an acquisition of us by a third party, even if the acquisition would be favorable to you.
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Our amended and restated certificate of incorporation and the Delaware General Corporation Law contain provisions (including the Section 382 Ownership Limit) that may have the effect of making more difficult or delaying attempts by others to obtain control of our Company, even when these attempts may be in the best interests of stockholders. In addition, our amended and restated certificate of incorporation authorizes our Board of Directors, without stockholder approval, to issue one or more series of preferred stock, which could have voting and conversion rights that adversely affect or dilute the voting power of the holders of common stock. Delaware law also imposes conditions on certain business combination transactions with “interested stockholders.” These provisions and others that could be adopted in the future could deter unsolicited takeovers or delay or prevent changes in our control or management, including transactions in which stockholders might otherwise receive a premium for their shares over then current market prices. These provisions may also limit the ability of stockholders to approve transactions that they may deem to be in their best interests.
We do not expect to pay dividends in the foreseeable future.
We have paid no cash dividends on our common stock to date, and we intend to retain our future earnings, if any, to fund the continued development and growth of our business. As a result, we do not expect to pay any cash dividends in the foreseeable future on our common stock. Further, any payment of cash dividends will also depend on our financial condition, results of operations, capital requirements and other factors, including contractual restrictions to which we may be subject, and will be at the discretion of our Board of Directors.
The exercise of our outstanding warrants may result in a dilution of our current stockholders' voting power and an increase in the number of shares eligible for future resale in the public market, which may negatively impact the market price of our stock.
The exercise of some or all of our outstanding warrants could significantly dilute the ownership interests of our existing stockholders. As of September 30, 2021, we had outstanding warrants to purchase an aggregate of 49,803 shares of common stock at exercise prices ranging from $4.80 to $17.32 per share. To the extent warrants are exercised, additional shares of common stock will be issued, and such issuance may dilute existing stockholders and increase the number of shares eligible for resale in the public market. Sales of substantial numbers of such shares in the public market could adversely affect the market price of our shares.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
There were no unregistered securities to report which were sold or issued by Ontrak without the registration of these securities under the Securities Act of 1933 in reliance on exemptions from such registration requirements, within the period covered by this report, which have not been previously included in a Current Report on Form 8-K.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Mine Safety Disclosures.
Not applicable.
Item 5. Other Information
None
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Item 6. Exhibits
| Exhibit No. | Description | |||||||
| 10.1# | ||||||||
| 10.2# | ||||||||
| 10.3# | ||||||||
| 31.1* | ||||||||
| 31.2* | ||||||||
| 32.1** | ||||||||
| 32.2** | ||||||||
| 101.INS* | XBRL Instance Document | |||||||
| 101.SCH* | Inline XBRL Taxonomy Extension Schema Document | |||||||
| 101.CAL* | Inline XBRL Taxonomy Extension Calculation Linkbase Document | |||||||
| 101.DEF* | Inline XBRL Taxonomy Extension Definition Linkbase Document | |||||||
| 101.LAB* | Inline XBRL Taxonomy Extension Label Linkbase Document | |||||||
| 101.PRE* | Inline XBRL Taxonomy Extension Presentation Linkbase Document | |||||||
| 104* | Cover Page Interactive Data File (formatted as Inline XBRL with applicable taxonomy extension information contained in Exhibits 101) | |||||||
_____________________
* Filed herewith.
** Furnished herewith.
# Management contract or compensatory plan or arrangement.
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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.
| ONTRAK, INC. | ||||||||
| Date: November 5, 2021 | By: | /s/ JONATHAN MAYHEW | ||||||
| Jonathan Mayhew Chief Executive Officer (Principal Executive Officer) | ||||||||
| Date: November 5, 2021 | By: | /s/ BRANDON H. LAVERNE | ||||||
| Brandon H. LaVerne Chief Financial Officer (Principal Financial Officer) | ||||||||
| Date: November 5, 2021 | By: | /s/ JAMES J. PARK | ||||||
| James J. Park Chief Accounting Officer (Principal Accounting Officer) | ||||||||
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