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, 2022~~March 31, 2023

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.)

2200 Paseo Verde Parkway, Suite 280, Henderson, NV 89052

(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~~Capital Market
9.50% Series A Cumulative Perpetual Preferred Stock, $0.0001 par value	OTRKP	The NASDAQ ~~Global~~Capital 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 ~~November 15, 2022,~~May 9, 2023, there were ~~27,034,375~~29,321,106 shares of the registrant's common stock, $0.0001 par value per share, outstanding.

Table of Contents

TABLE OF CONTENTS


PART I - FINANCIAL INFORMATION			3

	ITEM 1. Financial Statements		3

		Condensed Consolidated Balance Sheets as of ~~September~~March 31, 202 ~~30, 2022~~3 (unaudited) and December 31, 20 212	3

		Condensed Consolidated Statements of Operations for the Three ~~and~~ ~~Nine~~Months Ended ~~September 30, 2022~~March 31, 2023 and ~~2021~~202 2 (unaudited)	4

		Condensed Consolidated Statements of Stockholders’ Equity for the Three ~~and~~ N i ne Months Ended ~~September 30, 2022~~March 31, 2023 and ~~2021~~202 2 (unaudited)	5

		Condensed Consolidated Statements of Cash Flows for the ~~Nine~~Three Months Ended ~~September 30, 2022~~March 31, 202 3 and ~~2021~~202 2 (unaudited)	76

		Notes to Condensed Consolidated Financial Statements	97

	ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of Operations		29

	ITEM 3. Quantitative and Qualitative Disclosures About Market Risk		3837

	ITEM 4. Controls and Procedures		3837

PART II - OTHER INFORMATION			3938

	ITEM 1. Legal Proceedings		3938

	ITEM 1A. Risk Factors		4038

	ITEM 2. Unregistered Sales of Equity Securities and Use of Proceeds		6059

	ITEM 3. Defaults Upon Senior Securities		6059

	ITEM 4. Mine Safety Disclosures		6059

	ITEM 5. Other Information		6059

	ITEM 6. Exhibits		6359

	Signatures		6461

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.”

Table of Contents

PART I - FINANCIAL INFORMATION

Item 1. Financial Statements

ONTRAK, INC.

CONDENSED CONSOLIDATED BALANCE SHEETS

(in thousands, except share and per share data)


		September 30, 2022		December 31, 2021			March 31, 2023		December 31, 2022
Assets	Assets	(unaudited)				Assets	(unaudited)
Current assets:	Current assets:					Current assets:
Cash and cash equivalents	Cash and cash equivalents	$	7,253	$	58,824	Cash and cash equivalents	$	7,393	$	5,032
Restricted cash - current	Restricted cash - current	4,477		6,716		Restricted cash - current	4,681		4,477
Receivables, net	Receivables, net	4,590		5,938		Receivables, net	695		973
Unbilled receivables	Unbilled receivables	412		3,235		Unbilled receivables	236		453
Deferred costs - current	Deferred costs - current	145		600		Deferred costs - current	160		156
Prepaid expenses and other current assets	Prepaid expenses and other current assets	2,179		5,019		Prepaid expenses and other current assets	2,288		3,168
Total current assets	Total current assets	19,056		80,332		Total current assets	15,453		14,259
Long-term assets:	Long-term assets:					Long-term assets:
Property and equipment, net	Property and equipment, net	2,505		3,785		Property and equipment, net	2,241		2,498
Restricted cash - long-term	Restricted cash - long-term	204		406		Restricted cash - long-term	—		204
Goodwill	Goodwill	5,713		5,713		Goodwill	5,713		5,713
Intangible assets, net	Intangible assets, net	1,430		2,346		Intangible assets, net	820		1,125
Other assets	Other assets	1,038		444		Other assets	381		1,326
Operating lease right-of-use assets	Operating lease right-of-use assets	712		656		Operating lease right-of-use assets	238		632
Total assets	Total assets	$	30,658	$	93,682	Total assets	$	24,846	$	25,757
Liabilities and stockholders' equity	Liabilities and stockholders' equity					Liabilities and stockholders' equity
Current liabilities:	Current liabilities:					Current liabilities:
Accounts payable	Accounts payable	$	1,768	$	1,001	Accounts payable	$	1,706	$	1,927
Accrued compensation and benefits	Accrued compensation and benefits	2,095		2,343		Accrued compensation and benefits	2,106		1,987
Deferred revenue	Deferred revenue	288		441		Deferred revenue	309		326

Current portion of operating lease liabilities	Current portion of operating lease liabilities	655		595		Current portion of operating lease liabilities	60		653
Other accrued liabilities	Other accrued liabilities	2,710		5,953		Other accrued liabilities	4,032		4,576

Total current liabilities	Total current liabilities	7,516		10,333		Total current liabilities	8,213		9,469
Long-term liabilities:	Long-term liabilities:					Long-term liabilities:
Long-term debt, net	Long-term debt, net	9,218		35,792		Long-term debt, net	9,804		10,065
Long-term operating lease liabilities	Long-term operating lease liabilities	711		932		Long-term operating lease liabilities	209		546
Long-term finance lease liabilities		8		136
Other liabilities		—		934

Total liabilities	Total liabilities	17,453		48,127		Total liabilities	18,226		20,080
Commitments and contingencies	Commitments and contingencies					Commitments and contingencies
Stockholders' equity:	Stockholders' equity:					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, 2022 and December 31, 2021		—		—
Common stock, $0.0001 par value; 500,000,000 shares authorized; 26,914,155 and 20,680,186 shares issued and outstanding at September 30, 2022 and December 31, 2021, respectively		3		2
Preferred stock, $0.0001 par value; 50,000,000 shares authorized; 3,770,265 shares issued and outstanding at each of March 31, 2023 and December 31, 2022						Preferred stock, $0.0001 par value; 50,000,000 shares authorized; 3,770,265 shares issued and outstanding at each of March 31, 2023 and December 31, 2022	—		—
Common stock, $0.0001 par value; 500,000,000 shares authorized; 29,320,248 and 27,167,479 shares issued and outstanding at March 31, 2023 and December 31, 2022, respectively						Common stock, $0.0001 par value; 500,000,000 shares authorized; 29,320,248 and 27,167,479 shares issued and outstanding at March 31, 2023 and December 31, 2022, respectively	3		3
Additional paid-in capital	Additional paid-in capital	446,837		436,721		Additional paid-in capital	457,708		448,415
Accumulated deficit	Accumulated deficit	(433,635)		(391,168)		Accumulated deficit	(451,091)		(442,741)
Total stockholders' equity	Total stockholders' equity	13,205		45,555		Total stockholders' equity	6,620		5,677
Total liabilities and stockholders' equity	Total liabilities and stockholders' equity	$	30,658	$	93,682	Total liabilities and stockholders' equity	$	24,846	$	25,757

See notes to condensed consolidated financial statements.

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ONTRAK, INC.

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(unaudited, in thousands, except per share data)


		Three Months Ended September 30,				Nine Months Ended September 30,					Three Months Ended March 31,
		2022		2021		2022		2021				2023		2022
Revenue	Revenue	$	2,843	$	18,594	$	12,004	$	73,801	Revenue		$	2,529	$	5,258
Cost of revenue	Cost of revenue	1,436		5,856		6,488		27,125		Cost of revenue		847		2,846
Gross profit	Gross profit	1,407		12,738		5,516		46,676		Gross profit		1,682		2,412

Operating expenses:	Operating expenses:									Operating expenses:
Research and development	Research and development	2,833		4,563		9,113		13,531		Research and development		1,644		3,428
Sales and marketing	Sales and marketing	1,151		2,269		3,893		7,839		Sales and marketing		990		1,436
General and administrative	General and administrative	7,552		11,325		27,694		33,966		General and administrative		5,818		10,693
Restructuring, severance and related costs		934		49		934		1,339
Restructuring, severance and related charges										Restructuring, severance and related charges		457		—
Total operating expenses	Total operating expenses	12,470		18,206		41,634		56,675		Total operating expenses		8,909		15,557
Operating loss	Operating loss	(11,063)		(5,468)		(36,118)		(9,999)		Operating loss		(7,227)		(13,145)

Other expense, net		(1,241)		(361)		(3,213)		(1,004)
Other income, net										Other income, net		291		—
Interest expense, net	Interest expense, net	(440)		(2,054)		(2,996)		(6,090)		Interest expense, net		(1,394)		(1,400)
Loss before income taxes	Loss before income taxes	(12,744)		(7,883)		(42,327)		(17,093)		Loss before income taxes		(8,330)		(14,545)
Income tax expense	Income tax expense	(20)		—		(140)		—		Income tax expense		(20)		(100)
Net loss	Net loss	$	(12,764)	$	(7,883)	$	(42,467)	$	(17,093)	Net loss		(8,350)		(14,645)
Dividends on preferred stock - declared and undeclared	Dividends on preferred stock - declared and undeclared	(2,239)		(2,239)		(6,716)		(6,716)		Dividends on preferred stock - declared and undeclared		(2,239)		(2,239)
Net loss attributable to common stockholders	Net loss attributable to common stockholders	$	(15,003)	$	(10,122)	$	(49,183)	$	(23,809)	Net loss attributable to common stockholders		$	(10,589)	$	(16,884)

Net loss per common share, basic and diluted	Net loss per common share, basic and diluted	$	(0.62)	$	(0.54)	$	(2.24)	$	(1.31)	Net loss per common share, basic and diluted		$	(0.38)	$	(0.81)

Weighted-average common shares outstanding, basic and diluted	Weighted-average common shares outstanding, basic and diluted	24,339		18,915		21,995		18,236		Weighted-average common shares outstanding, basic and diluted		28,115		20,723

See notes to condensed consolidated financial statements.

Table of Contents

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, 2022 3,770,265 $ — 20,947,850 $ 2 $ 440,601 $ (420,871) $ 19,732
Common stock issued relating to registered direct offering, net — — 5,000,000 1 3,293 — 3,294
Common stock issued for financing — — 739,645 — 1,249 — 1,249
Warrants issued — — — — 334 — 334
Restricted stock units vested, net of taxes — — 28,216 — (3) — (3)
401(k) employer match — — 198,444 — 144 — 144
Stock-based compensation expense — — — — 1,219 — 1,219
Net loss — — — — — (12,764) (12,764)
Balance at September 30, 2022 3,770,265 $ — 26,914,155 $ 3 $ 446,837 $ (433,635) $ 13,205
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


	Preferred Stock			Common Stock			Additional Paid-In Capital		Accumulated Deficit		Total Stockholders' Equity
	Shares	Amount		Shares	Amount
Balance at December 31, 2022	3,770,265	$	—	27,167,479	$	3	$	448,415	$	(442,741)	$	5,677


Common stock issued for financing	—	—		2,038,133	—		—		—		—
Warrants issued in connection with Keep Well Notes	—	—		—	—		10,797		—		10,797
Loss on extinguishment of debt with related party	—	—		—	—		(2,153)		—		(2,153)
Restricted stock units vested, net	—	—		1,253	—		(2)		—		(2)
401(k) employer match	—	—		113,383	—		—		—		—
Stock-based compensation expense	—	—		—	—		651		—		651

Net loss	—	—		—	—		—		(8,350)		(8,350)
Balance at March 31, 2023	3,770,265	$	—	29,320,248	$	3	$	457,708	$	(451,091)	$	6,620

Balance at December 31, 2021	3,770,265	$	—	20,680,186	$	2	$	436,721	$	(391,168)	$	45,555
Preferred dividends declared	—	—		—	—		(2,239)		—		(2,239)
Common stock issued relating to settlement of contingent consideration	—	—		24,333	—		213		—		213
Common stock issued for consulting services	—	—		55,555	—		102		—		102
Restricted stock units vested, net	—	—		1,259	—		(2)		—		(2)
401(k) employer match	—	—		69,987	—		188		—		188
Stock-based compensation expense	—	—		—	—		2,911		—		2,911
Net loss	—	—		—	—		—		(14,645)		(14,645)
Balance at March 31, 2022	3,770,265	$	—	20,831,320	$	2	$	437,894	$	(405,813)	$	32,083

Balance at December 31, 2021 3,770,265 $ — 20,680,186 $ 2 $ 436,721 $ (391,168) $ 45,555
Preferred dividends declared — — — — (2,239) — (2,239)
Common stock issued relating to registered direct offering, net — — 5,000,000 1 3,293 — 3,294
Common stock issued relating to settlement of contingent consideration — — 33,415 — 293 — 293
Common stock issued for financing and consulting services — — 795,200 — 1,351 — 1,351
Warrants issued — — — — 617 — 617
Restricted stock units vested, net of taxes — — 31,607 — (6) — (6)
401(k) employer match — — 373,747 — 525 — 525
Stock-based compensation expense — — — — 6,282 — 6,282
Net loss — — — — — (42,467) (42,467)
Balance at September 30, 2022 3,770,265 $ — 26,914,155 $ 3 $ 446,837 $ (433,635) $ 13,205

~~Table of Contents~~

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

See notes to condensed consolidated financial statements.

Table of Contents

ONTRAK, INC.

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(unaudited, in thousands)

For the Nine Months Ended
September 30,
2022 2021
Cash flows from operating activities
Net loss $ (42,467) $ (17,093)
Adjustments to reconcile net loss to net cash used in operating activities:
Stock-based compensation expense 6,282 8,871
Write-off of debt issuance costs 3,334 —
Depreciation expense 2,222 658
Amortization expense 1,946 2,181
Gain on forgiveness of PPP loan — (171)
Change in fair value of warrants (121) —
Change in fair value of contingent consideration — 1,305
401(k) employer match in common shares 528 860
Common stock issued for consulting services 102 —
Changes in operating assets and liabilities:
Receivables 1,348 11,478
Unbilled receivables 2,823 (834)
Prepaid expenses and other current assets 2,966 1,674
Accounts payable 758 (285)
Deferred revenue (153) (15,633)
Leases liabilities (160) (208)
Other accrued liabilities (1,928) (3,914)
Net cash used in operating activities (22,520) (11,111)
Cash flows from investing activities
Purchase of property and equipment (1,004) (3,865)
Net cash used in investing activities (1,004) (3,865)
Cash flows from financing activities
Repayments of 2024 Notes (39,194) —
Proceeds from Keep Well Notes 11,000 —
Proceeds from issuance of common stock 4,000 —
Common stock issuance costs (706) —
Dividends paid (2,239) (6,712)
Debt issuance costs (792) —
Proceeds from warrant exercise — 58
Proceeds from options exercise — 5,584
Finance lease obligations (226) (243)
Financed insurance premium payments (2,325) (2,154)
Payment of taxes related to net-settled stock awards (6) —
Net cash used in financing activities (30,488) (3,467)
Net change in cash and restricted cash (54,012) (18,443)
Cash and restricted cash at beginning of period 65,946 103,210
Cash and restricted cash at end of period $ 11,934 $ 84,767
Supplemental disclosure of cash flow information:
Interest paid $ 2,307 $ 5,483
Income taxes paid 210 91

~~Table of Contents~~


							For the Three Months Ended March 31,
							2023		2022
Cash flows from operating activities						Cash flows from operating activities
Net loss						Net loss	$	(8,350)	$	(14,645)
Adjustments to reconcile net loss to net cash used in operating activities:						Adjustments to reconcile net loss to net cash used in operating activities:
Stock-based compensation expense						Stock-based compensation expense	651		2,911
Paid-in-kind interest expense						Paid-in-kind interest expense	848		—
Gain on termination of operating lease						Gain on termination of operating lease	(471)		—
Depreciation expense						Depreciation expense	295		651
Amortization expense						Amortization expense	912		637

Change in fair value of warrant liability						Change in fair value of warrant liability	19		—
401(k) employer match in common shares						401(k) employer match in common shares	—		202

Common stock issued for consulting services						Common stock issued for consulting services	—		102

Changes in operating assets and liabilities:						Changes in operating assets and liabilities:
Receivables						Receivables	278		163
Unbilled receivables						Unbilled receivables	217		(933)
Prepaid expenses and other current assets						Prepaid expenses and other current assets	836		351
Accounts payable						Accounts payable	(258)		789
Deferred revenue						Deferred revenue	(18)		47
Leases liabilities						Leases liabilities	(118)		124
Other accrued liabilities						Other accrued liabilities	206		(890)
Net cash used in operating activities						Net cash used in operating activities	(4,953)		(10,491)

Cash flows from investing activities						Cash flows from investing activities
Purchase of property and equipment						Purchase of property and equipment	(25)		(255)
Net cash used in investing activities						Net cash used in investing activities	(25)		(255)

Cash flows from financing activities						Cash flows from financing activities
Proceeds from Keep Well Notes						Proceeds from Keep Well Notes	8,000		—

Dividends paid						Dividends paid	—		(2,239)
Repayments of 2024 Notes						Repayments of 2024 Notes	—		(19,994)

Finance lease obligations						Finance lease obligations	(50)		(84)
Financed insurance premium payments						Financed insurance premium payments	(611)		(750)
Payment of taxes related to net-settled stock awards						Payment of taxes related to net-settled stock awards	—		(2)
Net cash provided by (used in) financing activities						Net cash provided by (used in) financing activities	7,339		(23,069)

Net change in cash and restricted cash						Net change in cash and restricted cash	2,361		(33,815)

Cash and restricted cash at beginning of period						Cash and restricted cash at beginning of period	9,713		65,946
Cash and restricted cash at end of period						Cash and restricted cash at end of period	$	12,074	$	32,131

Supplemental disclosure of cash flow information:						Supplemental disclosure of cash flow information:
Interest paid						Interest paid	$	27	$	1,181
Income taxes refunded, net						Income taxes refunded, net	(72)		—
Non-cash financing and investing activities:	Non-cash financing and investing activities:					Non-cash financing and investing activities:

Common stock issued in connection with Keep Well Agreement		$	1,249	$	—
Warrants issued in connection with 2024 Notes		458		—
Financed insurance premium		352		—
Warrants issued in connection with Keep Well Notes	Warrants issued in connection with Keep Well Notes	322		—		Warrants issued in connection with Keep Well Notes	$	10,797	$	—
Finance lease and accrued purchases of property and equipment						Finance lease and accrued purchases of property and equipment	44		187
Common stock issued to settle contingent consideration	Common stock issued to settle contingent consideration	293		—		Common stock issued to settle contingent consideration	—		213
Accrued debt issuance costs		138		—
Finance lease and accrued purchases of property and equipment		31		230

See notes to condensed consolidated financial statements.

Table of Contents

ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

Note 1. Organization

Company Overview

Ontrak, Inc. (“Ontrak,” “Company,” “we,” “us” or “our”) is an ~~AI-powered~~artificial intelligence (“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 technology-enabled platform provides ~~claim based~~claim-based analytics and predictive modeling to provide analytic insights throughout the delivery of our personalized treatment program. The Company's program predicts people whose chronic disease will improve with behavior change, recommends effective care pathways that people are willing to follow, and engages and guides them to and through the care they need. By combining predictive analytics with human engagement, we deliver improved member health and validated outcomes and savings to healthcare payors.

The Company's integrated, technology-enabled OntrakTM programs 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 domay 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 Ontrak ~~program~~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 108 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, ~~2021,~~2022, filed with the Securities and Exchange Commission ("SEC"), from which the consolidated balance sheet as of December 31, ~~2021~~2022 has been derived. The Company operates as one segment.

The ~~Company’s ability~~Company provides services to ~~fund ongoing operations is dependent on several factors.~~commercial (employer funded), managed Medicare Advantage, managed Medicaid and dual eligible (Medicare and Medicaid) populations to generate revenues. The Company also provides mental health and wellbeing support to members of employer customers under our LifeDojo wellbeing solution. 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, managed Medicaid and duel eligible (Medicare and Medicaid) populations. The Company also provides mental health and wellbeing support to members of employer customers under our LifeDojo wellbeing solution.

We have incurred significant net losses and negative operating cash flows since our inception, and we expect to continue to incur net losses and negative operating cash flow, in part due to the negative impact on our operations ~~resulting from~~by customer terminations. As of ~~September 30, 2022,~~March 31, 2023, our cash and restricted cash was ~~$11.9~~$12.1 million and we had working capital of approximately ~~$11.5~~$7.2 million. For the ~~nine~~three months ended ~~September 30, 2022,~~March 31, 2023, our average monthly cash flow from operations burn rate was ~~$2.5~~$1.7 million. ~~Based on our~~Throughout the year ended December 31, 2022 and in March 2023, as part of the Company's continued cost saving measures to reduce its operating costs and to better align with its previously stated strategic initiatives, the Company implemented a number of reduction in workforce and vendor cost optimization plans. The Company expects the full effect of these plans to be realized during the remainder of 2023 and beyond, including a decrease in the Company's operating costs and an improvement in the Company's average monthly cash ~~and restricted cash levels, expected~~flow from operations. The cost optimization plans were necessary to right size the Company's business commensurate with its current customer base.

In addition to revenue from business operations, ~~and after taking into account the amount available to borrow~~our primary source of working capital is borrowing under the ~~Master~~Keep Well Agreement (as defined in Note Purchase Agreement we entered into on April 15, 2022 with Acuitas Capital LLC ("Acuitas"), an entity indirectly wholly owned and controlled by Terren S. Peizer, the Company's Executive Chairman and largest stockholder (as amended to date, the "Keep Well Agreement"), we expect to have sufficient cash to cover our operating expenses through at least the next twelve months following the date our financial statements in this report are issued.10 below). As of ~~the date of this Quarterly Report on Form 10-Q, the Company had $14~~March 31, 2023, $6.0 million ~~of available borrowing capacity~~remained to be borrowed under the Keep Well Agreement. ~~See Note 10~~We may also be able to raise capital through equity financings, however, when we can affect such financing and ~~Note 14 below for more information about~~ the ~~Keep Well Agreement.~~

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

However, delays in cash collections, lower revenue than anticipated, unforeseen expenditures, or our inability to satisfy the conditions precedent to borrowing funds under the Keep Well Agreement could impact our expectations.

~~In addition to revenue from business operations, our primary source~~amount of capital ~~is the amount available under the Keep Well Agreement. We may also be able to raise capital through equity financing, however, when we can effect such sales and the amount of shares we can sell~~raised depends on a variety of factors, ~~to be determined by us from time to time,~~ including, among others, market conditions, the trading price of our common stock and our determination as to the appropriate sources of funding for our operations.

Regardless of our success in raising additional capital, we expect our cash on hand and the remaining $6.0 million to be borrowed under the Keep Well Agreement will be sufficient to meet our obligations for at least the next 12 months from the date these financial statements are released.

Management plans to continue to execute on its strategy by (i) exploring other sources of capital with either debt or equity financing for ~~on-going~~future liquidity needs; (ii) continuing to manage operating costs by strategically pursuing cost optimization initiatives; and (iii) continuing to pursue executing our growth strategy by improving our marketing techniques and implementing new features to increase customer engagement, adding new members and securing new customer contracts.

There can be no assurance that we will be able to satisfy the conditions precedent to future borrowings under the Keep Well Agreement or that other capital will be available when needed or that, if available, it will be obtained on terms favorable to us and our stockholders, that we will be successful in implementing cost optimization initiatives, or that we will be successful in executing our growth strategy. In addition, our ~~ability to borrow funds~~Keep Well Agreement contains various financial and other covenants, and any non-compliance with those covenants could prevent us from borrowing additional amounts under the Keep Well Agreement ~~is subject to conditions precedent being satisfied, and we may not satisfy such conditions precedent if and when we need to borrow funds~~and/or result in an acceleration of the repayment of the amounts outstanding thereunder. Furthermore, equity or debt financings may have a dilutive effect on the holdings of our existing stockholders, and debt financings may subject us to ~~and if we borrow funds under the Keep Well Agreement, we will be subject to,~~ restrictive covenants, operational restrictions and security interests in our assets.

Recently Adopted Accounting Standards

In ~~May~~October 2021, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") No. 2021-08, "Business Combinations (Topic 805) - Accounting for Contract Assets and Contract Liabilities from Contracts with Customers" ("ASU 2021-08"), which improves the accounting for acquired revenue contracts with customers in a business combination by addressing diversity in practice and inconsistency related to recognition of an acquired contract liability, and payment terms and their effect on subsequent revenue recognized by the acquirer. The amendments in ASU 2021-08 require that an entity (acquirer) recognize and measure contract assets and contract liabilities acquired in a business combination in accordance with Topic 606. The amendments in ASU 2021-08, however, do not affect the accounting for other assets or liabilities that may arise from revenue contracts with customers in accordance with Topic 606, such as refund liabilities, or in a business combination, such as customer-related intangible assets and contract-based intangible assets. ASU 2021-08 is effective for fiscal years beginning after December 15, 2022, including interim periods within those fiscal years. The amendments in ASU 2021-08 should be applied prospectively to business combinations occurring on or after the effective date of the amendments. The adoption of ASU 2021-08 on January 1, 2023 did not have a material effect on our condensed consolidated financial statements.

In October 2020, 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 Options2020-10, "Codification Improvements" ("ASU ~~2021-04"~~2020-10"), which includes amendments to ~~clarify and reduce diversity~~improve consistency of disclosures by ensuring that all guidance that require disclosures or provides an option for an entity to provide information in ~~an issuer’s accounting~~the notes to the financial statement is codified in the disclosure section of the codification. ASU 2020-10 is effective for ~~modifications or exchanges of freestanding equity-classified written call options (for example, warrants) that remain equity classified~~public companies, other than smaller reporting companies, for fiscal years beginning after ~~modification or exchange. The amendments in~~December 15, 2020. For all other entities, ASU ~~2021-04 are~~2020-10 is effective for fiscal years beginning after December 15, 2021, and interim periods ~~with fiscal years~~ beginning after December 15, ~~2021.~~2022. The adoption of ASU ~~2021-04~~2020-10 on January 1, ~~2022~~2023 did not have a material effect on our condensed consolidated financial statements.

In ~~August 2020,~~June 2016, the FASB issued ASU No. ~~2020-06, “Debt~~2016-13, “Financial Instruments - ~~Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging~~Credit Losses (Topic 326) - ~~Contracts in Entity’s Own Equity (Subtopic 815-40) ("~~Measurement of Credit Losses on Financial Instruments” (“ASU ~~2020-06"~~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 SEC, 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 2020-062016-13 is effective for ~~fiscal years~~annual reporting periods beginning after December 15, ~~2021,~~2022, including interim periods within those ~~fiscal years.~~annual periods. The adoption of ASU ~~2020-06~~2016-13 on January 1, ~~2022~~2023 did not have a material effect on our condensed consolidated financial statements.

Recently Issued Accounting Pronouncements

In the time since the Company filed its most recent Annual Report on Form 10-K for the year ended December 31, ~~2021,~~2022, there were no new accounting standards issued, but not yet adopted by the Company, which are expected to materially affect the Company's condensed consolidated financial statements.

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

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):

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~~ONTRAK, INC.~~

~~NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS~~

~~(unaudited)~~


		September 30, 2022		December 31, 2021			March 31, 2023		December 31, 2022
Cash and cash equivalents	Cash and cash equivalents	$	7,253	$	58,824	Cash and cash equivalents	$	7,393	$	5,032
Restricted cash - current:	Restricted cash - current:					Restricted cash - current:
Dividend payments on preferred stock(1)	Dividend payments on preferred stock(1)	4,477		6,716		Dividend payments on preferred stock(1)	4,477		4,477
Letter of credit (2)						Letter of credit (2)	204		—
Subtotal - Restricted cash - current	Subtotal - Restricted cash - current	4,477		6,716		Subtotal - Restricted cash - current	4,681		4,477
Restricted cash - long term:	Restricted cash - long term:					Restricted cash - long term:

Letter of credit (1)		204		306
Cash required per note agreement (2)		—		100
Letter of credit (2)						Letter of credit (2)	—		204
Subtotal - Restricted cash - long term	Subtotal - Restricted cash - long term	204		406		Subtotal - Restricted cash - long term	—		204
Cash, cash equivalents and restricted cash	Cash, cash equivalents and restricted cash	$	11,934	$	65,946	Cash, cash equivalents and restricted cash	$	12,074	$	9,713

____________

(1) ~~LOC~~Represents the amount remaining in an account funded with a portion of the proceeds from the sale of the Series A Preferred Stock for the payment of dividends thereon until August 2022. The use of such funds for the payment of such dividends is subject to compliance with applicable laws. Also, the Company’s board of directors may determine that the use of such funds for other corporate purposes is required ~~as part~~pursuant to the exercise of their fiduciary duties to the Company’s common stockholders.

(2) The letter of credit ("LOC") was required under the terms of the lease for our Santa Monica, CA ~~office lease.~~

~~(2) Cash required~~office. In accordance with the lease termination agreement entered into on February 16, 2023 (as discussed in Note 9 below), the LOC is to be ~~maintained in our accounts per~~returned to the ~~2024 Note agreement,~~Company within 120 days of the lease termination date, which ~~loan balance~~ was ~~fully repaid in July 2022.~~

February 28, 2023.

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,					Three Months Ended March 31,
Percentage of Revenue	Percentage of Revenue	2022		2021		2022		2021		Percentage of Revenue		2023		2022
Customer A	Customer A	48.1	%	12.3	%	47.8	%	10.3	%	Customer A		52.0	%	24.0	%
Customer B	Customer B	35.7		6.2		28.8		4.3		Customer B		35.8		48.3
Customer C	Customer C	11.6		7.4		16.2		4.0		Customer C		8.7		3.7
Customer D	Customer D	—		50.8		—		46.5		Customer D		1.7		18.5
Customer E		—		17.7		1.6		31.3

Remaining customers	Remaining customers	4.6		5.6		5.6		3.6		Remaining customers		1.8		5.5
		100.0	%	100.0	%	100.0	%	100.0	%
Total										Total		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, 2022 December 31, 2021
Customer C (1) 82.9 % — %
Customer A 10.0 —
Customer E 4.3 94.0
Remaining customers 2.8 6.0
100.0 % 100.0 %

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~~___________~~ONTRAK, INC.

~~(1) 100% of the outstanding accounts receivable balance for this customer at September 30, 2022 has been received as of the date of this Quarterly Report on Form 10-Q.~~NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)


Percentage of Accounts Receivable	March 31, 2023		December 31, 2022
Customer C	31.5	%	3.8	%
Customer B	29.4		35.7
Customer E	28.2		20.3
Customer A	—		39.1
Remaining customers	10.9		1.1
Total	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, 2022~~March 31, 2023 and ~~2021.~~2022.

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~~ONTRAK, INC.~~

~~NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS~~

~~(unaudited)~~

On February 26, 2021, the Company received a termination notice from Customer E and working with this customer on a transition plan, we completed the participation of this customer's members in the program as of December 31, 2021. In addition, on August 18, 2021, the Company received a termination notice from Customer D of their intent not to continue the program past December 31, 2021. All members relating to Customers D and E have completed their participation in the program as of December 31, 2021. As a result of these termination notices, in March and November 2021, the Company’s management assessed various options and deemed it prudent to initiate workforce reduction plans to effectively align its resources and manage its operating costs. As of December 31, 2021, $0.4 million of accrued termination related costs related to these workforce reduction plans remained outstanding as part of "Other accrued liabilities" on our condensed consolidated balance sheet. As of September 30, 2022, there was no amount outstanding relating to such accrued termination related costs. See Note 6 below for information on a further workforce reduction plan approved in August 2022.

Note 4. Property and Equipment

Property and equipment consisted of the following (in thousands):


		September 30,		December 31,			March 31,		December 31,
		2022		2021			2023		2022
Software	Software	$	6,536	$	4,051	Software	$	4,401	$	6,882
Computers and equipment	Computers and equipment	464		456		Computers and equipment	466		466
ROU assets - finance lease	ROU assets - finance lease	375		375		ROU assets - finance lease	375		375
Leasehold improvements	Leasehold improvements	17		17		Leasehold improvements	—		17
Software development in progress		56		1,514

Subtotal	Subtotal	7,448		6,413		Subtotal	5,242		7,740
Less: Accumulated depreciation and amortization	Less: Accumulated depreciation and amortization	(4,943)		(2,628)		Less: Accumulated depreciation and amortization	(3,001)		(5,242)
Property and equipment, net	Property and equipment, net	$	2,505	$	3,785	Property and equipment, net	$	2,241	$	2,498

Total depreciation and amortization expense relating to property and equipment presented above was ~~$0.8~~$0.3 million and ~~$0.4~~$0.7 million for the three months ended ~~September 30,~~March 31, 2023 and 2022, ~~and 2021, respectively, and $2.3 million and $0.9 million for the nine months ended September 30, 2022 and 2021,~~ respectively.

Capitalized Internal Use Software Costs

During the three months ended ~~September 30,~~March 31, 2023 and 2022, ~~and 2021,~~ we capitalized ~~$0.2~~$0.1 million and ~~$1.4~~$0.4 million, respectively, of costs relating to development of internal use software, and recorded ~~$0.8~~$0.3 million and ~~$0.2 million, respectively, of amortization expense relating to capitalized internal use software, which was included in total depreciation and amortization expense as described above.~~

During the nine months ended September 30, 2022 and 2021, we capitalized $1.0 million and $4.0 million, respectively, of costs relating to development of internal use software, and recorded $2.1 million and $0.5$0.6 million, respectively, of amortization expense relating to capitalized internal use software, which was included in total depreciation and amortization expense as described above.

Note 5. Goodwill and Intangible Assets

Goodwill

The carrying amount of indefinite-lived goodwill was $5.7 million as of ~~September 30, 2022~~March 31, 2023 and December 31, ~~2021.~~2022.

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~~ONTRAK, INC.~~

~~NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS~~

~~(unaudited)~~

Intangible Assets

The following table sets forth amounts recorded for intangible assets subject to amortization (in thousands):

At September 30, 2022 At December 31, 2021
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 $ (2,236) $ 1,264 $ 3,500 $ (1,361) $ 2,139
Customer relationships 5 270 (104) 166 270 (63) 207
Total $ 3,770 $ (2,340) $ 1,430 $ 3,770 $ (1,424) $ 2,346

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)


		At March 31, 2023						At December 31, 2022
	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	$	(2,819)	$	681	$	3,500	$	(2,528)	$	972
Customer relationships	5	270		(131)		139		270		(117)		153
Total		$	3,770	$	(2,950)	$	820	$	3,770	$	(2,645)	$	1,125

Amortization expense for intangible assets presented above was $0.3 million for each of the three months ended ~~September 30, 2022~~March 31, 2023 and ~~2021 and $0.9 million for each of the nine months ended September 30, 2022 and 2021.~~2022.

At ~~September 30, 2022,~~March 31, 2023, estimated amortization expense for intangible assets for each ~~of the five years~~year thereafter was as follows (in thousands):


Remainder of 2022		$	305
2023		1,026
Remainder of 2023				Remainder of 2023	$	721
2024	2024	54		2024	54
2025	2025	45		2025	45
Total	Total	$	1,430	Total	$	820

Note 6. Restructuring, ~~severance~~Severance and ~~related costs~~Related Costs

~~In August 2022, the Company's management approved a restructuring plan~~On March 9, 2023, as part of ~~management's~~the Company's continued cost saving measures ~~reducing approximately 34% of positions, in order~~and to reduce its operating costs and to help align with its previously stated strategic ~~initiatives.~~initiatives, the Company implemented additional headcount reductions wherein approximately 19% of the Company's employee positions were eliminated. During the three months ended ~~September 30, 2022,~~March 31, 2023, the Company incurred a total of approximately ~~$0.9~~$0.5 million of termination ~~benefits to the impacted employees,~~related costs, including severance payments and benefits payable to the impacted employees, recorded as part of "Restructuring, severance and related costs" on ~~our~~its condensed consolidated statement of operations for the three ~~and nine~~ months ended ~~September 30, 2022.~~March 31, 2023. As of ~~September 30, 2022, we~~March 31, 2023, the Company paid ~~a total of $0.8 million of the total $0.9 million of termination benefits incurred through September 30, 2022 and we had~~ $0.1 million of ~~accrued termination related costs remaining~~such amount and $0.4 million was included as part of ~~"Other accrued liabilities"~~"Accrued compensation and benefits" on the Company's condensed consolidated balance sheet.

In March 2021, the Company’s management assessed various options and deemed it prudent to initiate workforce reduction plans to effectively align its resources and manage its operating costs subsequent to receiving a termination notice from the Company's then largest customer (discussed above in Note 3). During the three and nine months ended September 30, 2021, the Company incurred $0.05 million and $1.3 million, respectively, of severance and related benefit costs recorded as part of "Restructuring, severance and related costs" on the Company's condensed consolidated statement of operations.

Note

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~~ONTRAK, INC.~~

~~NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS~~

~~(unaudited)~~

~~Note 7.~~. 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~~were 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 were as follows (in thousands, except per share amounts) ~~was as follows:~~:

Three Months Ended
September 30, Nine Months Ended
September 30,
2022 2021 2022 2021
Net loss $ (12,764) $ (7,883) $ (42,467) $ (17,093)
Dividends on preferred stock - declared and undeclared (2,239) (2,239) (6,716) (6,716)
Net loss attributable to common stockholders $ (15,003) $ (10,122) $ (49,183) $ (23,809)
Weighted-average shares of common stock outstanding 24,339 18,915 21,995 18,236
Net loss per common share - basic and diluted $ (0.62) $ (0.54) $ (2.24) $ (1.31)

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)


	Three Months Ended March 31,
		2023		2022
Net loss		$	(8,350)	$	(14,645)
Dividends on preferred stock - declared and undeclared		(2,239)		(2,239)
Net loss attributable to common stockholders		$	(10,589)	$	(16,884)

Weighted-average shares of common stock outstanding		28,115		20,723
Net loss per common share - basic and diluted		$	(0.38)	$	(0.81)

The following common equivalent shares as of ~~September 30,~~March 31, 2023 and 2022, ~~and 2021,~~ 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,
2022 2021
Warrants to purchase common stock 1,576,256 626,321
Options to purchase common stock 3,378,626 3,258,353
Total 4,954,882 3,884,674


	March 31,
	2023	2022
Warrants to purchase common stock	42,496,703	167,496
Options to purchase common stock	5,585,828	3,505,469
Total	48,082,531	3,672,965

Equity Offerings

Common Stock

On August 2, 2022, the Company entered into a securities purchase agreement with certain institutional investors for the purchase and sale of 5,000,000 shares of the Company’s common stock at a purchase price of $0.80 per share in a registered direct offering. The offering closed on August 4, 2022 and the Company received total net proceeds of approximately $3.3 million (excluding approximately $0.7 million of fees and expenses). The Company used the net proceeds from the offering for working capital purposes.

~~On September 2, 2022,~~In February 2023, pursuant to the terms of the Keep Well Agreement, as ~~discussed~~a result of approvals obtained at the 2023 Special Meeting of Stockholders, the Company issued to Acuitas (as defined in Note 10 ~~the Company issued 739,645~~below) 2,038,133 additional shares of the Company's common ~~stock to Acuitas subsequent to obtaining stockholder approval on August 29, 2022 at the annual shareholder meeting.~~

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~~ONTRAK, INC.~~

~~NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS~~

~~(unaudited)~~

stock. For additional information, see Note 10 below.

Preferred Stock

In 2020, the Company completed the issuance of a total of 3,770,265 shares of 9.50% Series A Cumulative Perpetual Preferred Stock (the "Series A Preferred Stock"), which 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 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)~~consecutive and in certain other events.

Holders of Series A Preferred Stock of record at the close of business of each respective record date for quarterly dividends (February 15, May 15, August 15 and November ~~15)~~15 of each year) 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 or $0.593750 per quarter 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. ~~Our~~In 2022, our Board of Directors ~~approved~~declared the first quarterly dividend on the Series A Preferred Stock for shareholders of record on February 15, 2022 and ~~the Company~~ paid cash dividends on February 28, 2022. Thereafter, no dividends have been declared by our Board of $2.2 million and $6.7 million in the three and nine months ended September 30, 2021, respectively, and none in the three months ended September 30, 2022 and $2.2 million in the nine months ended September 30, 2022. At September 30, 2022,Directors. As such, at March 31, 2023, we had total undeclared dividends of ~~$5.2~~$9.7 million.

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

Note 8. Stock-Based Compensation

The Company's 2017 Stock Incentive Plan (the “2017 Plan”) and 2010 Stock Incentive Plan (the “2010 Plan”) (the 2017 Plan and the 2020 Plan together, the "Plan") provide for the issuance of ~~9,359,397~~10,174,421 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.~~employees and members of the Company's board of directors. The terms and conditions upon which options ~~become exercisable~~vest 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 one to four years on a straight-line basis. The terms and conditions upon which RSUs vest vary among grants; however, RSUs generally vest over ~~four~~three to five years on a straight-line basis. As of ~~September 30, 2022,~~March 31, 2023, the Company had ~~4,830,652~~7,029,479 stock options and RSUs outstanding and ~~3,127,627~~1,739,449 shares reserved for future awards.

Stock-based compensation expense was ~~$1.2~~$0.7 million and $2.9 million for the three months ended ~~September 30,~~March 31, 2023 and 2022, ~~and 2021, respectively, and $6.3 million and $8.9 million for the nine months ended September 30, 2022 and 2021,~~ respectively.

The assumptions used in the Black-Scholes option-pricing model were as follows:

~~Nine~~Three Months Ended
~~September 30, 2022~~March 31, 2023

Volatility

~~88.00% - 100.0%~~ 109.0%

Risk-free interest rate

~~1.04%~~3.57% - ~~3.45%~~4.18%

Expected life (in years)

~~2.67~~3.76 - ~~4.61~~3.81

Dividend yield

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~~three months ended ~~September 30, 2022~~March 31, 2023 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.

~~Table of Contents~~

~~ONTRAK, INC.~~

~~NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS~~

~~(unaudited)~~

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, 2021 3,618,145 $ 7.51
Granted 919,946 3.14
Forfeited (1,159,465) 10.48
Outstanding as of September 30, 2022 3,378,626 5.03
Options vested and exercisable as of September 30, 2022 1,001,513 $ 6.48


	Number of Shares	Weighted Average Exercise Price
Outstanding as of December 31, 2022	4,895,522	$	3.54
Granted	827,719	0.36

Forfeited	(137,413)	1.29

Outstanding as of March 31, 2023	5,585,828	3.12


Options vested and exercisable as of March 31, 2023	2,206,720	$	6.57

As of ~~September 30, 2022,~~March 31, 2023, there was ~~$4.4~~$3.3 million of ~~total~~ unrecognized compensation cost related to non-vested ~~stock~~share-based compensation arrangements granted to employees ~~directors~~ and ~~consultants~~directors under the ~~2017 Amended Plan, which is~~Plan. These costs are expected to be recognized over a weighted-average period of approximately ~~1.56~~2.44 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:

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

Restricted Stock Units Weighted-
Average
Grant Date Fair Value
Non-vested at December 31, 2021 111,874 $ 33.27
Granted 1,405,277 0.66
Forfeited (28,875) 28.31
Vested and distributed (36,250) 16.79
Non-vested at September 30, 2022 1,452,026 32.18


	Restricted Stock Units	Weighted- Average Grant Date Fair Value
Non-vested at December 31, 2022	1,449,526	$	2.15

Forfeited	(4,000)	33.41
Vested and distributed	(1,875)	51.98
Non-vested at March 31, 2023	1,443,651	2.00

As of ~~September 30, 2022,~~March 31, 2023, there was ~~$2.9~~$2.6 million of unrecognized compensation ~~cost~~costs related to unvested outstanding RSUs. ~~We expect~~These costs are expected to ~~recognize these costs~~be recognized over a ~~weighted average~~weighted-average period of ~~2.92~~approximately 2.42 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, 2021 35,832 $ 16.75
Granted 1,540,424 1.43
Outstanding as of September 30, 2022 1,576,256 1.78
Warrants exercisable as of September 30, 2022 1,576,256 1.78


	Number of Warrants	Weighted Average Exercise Price
Outstanding as of December 31, 2022	1,576,256	$	1.78


Granted	40,920,447	0.45


Outstanding as of March 31, 2023	42,496,703	0.46
Warrants exercisable as of March 31, 2023	42,496,703	0.46

~~Table~~On each of ~~Contents~~

~~ONTRAK, INC.~~

~~NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS~~

~~(unaudited)~~

January 5, 2023 and March 6, 2023, the Company borrowed $4 million under the Keep Well Agreement. In connection with ~~entering into~~ the ~~Eighth Amendment~~January 5, 2023 borrowing, the Company issued to Acuitas a warrant to purchase 473,373 shares of ~~our note~~the Company's common stock with an exercise price equal to $1.69 per share and in connection with the March 6, 2023 borrowing, the Company issued to Acuitas a warrant to purchase ~~agreement for our 2024 Notes on March 8, 2022,~~8,888,889 shares of the Company's common stock with an exercise price equal to $0.45 per share. In February 2023, as discussed in Note 10 below, ~~the Company issued~~warrants to ~~Special Situations Investing Group II, LLC (the “Holder”), a Purchase Warrant for Common Shares (the “Amendment Warrant”) pursuant to which the Holder may~~ purchase 1,775,148 shares of the Company’s common stock ~~in an aggregate amount of up 111,680 shares. Also,~~previously issued by the Company ~~issued additional warrants monthly beginning on March 31, 2022~~to Acuitas through June 30, 2022 (each a “Ticking Warrant” and together with the Amendment Warrant, the “Warrants”) having the same terms as the Amendment Warrant, to purchase a total of 118,931 shares of the Company's common stock. See Note 10 belowFebruary 20, 2023 were exchanged for ~~more information.~~

~~In connection with Keep Well Agreement and the Company's borrowings thereunder, as discussed in Note 10 below, as of September 30, 2022, the Company has issued to Acuitas~~ warrants to purchase ~~1,301,775~~33,333,333 shares of the Company’s common stock ~~(the "Keep Well Warrants"). The Keep Well Warrants have a term of five years and~~with an exercise price equal to ~~$1.69, which was~~$0.45 per share. All warrants issued to Acuitas have a five year term.

The assumptions used in the ~~closing price of the Company’s common stock~~Black-Scholes warrant-pricing model were determined as ~~reported on Nasdaq immediately preceding the time the parties entered into the Keep Well Agreement.~~follows:


	Three Months Ended March 31, 2023
Volatility	100.0	%
Risk-free interest rate	3.90% - 4.61%
Expected life (in years)	5.00
Dividend yield	0	%

Performance-Based and Market-Based Awards

The Company’s Compensation Committee designed a compensation structure to align the compensation level of the former 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:

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

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

As of January 1, 2023, both of the market-based options described above became fully vested.

Note9.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 in Henderson, Nevada, which ~~lease was entered into with an effective date of March 24, 2022 and~~ serves as the Company's ~~new~~ headquarters, ~~as well as in Santa Monica, California~~ and in Rosemont, Illinois, which are accounted for as operating leases. The Company 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 ~~13,166~~5,297 square feet of office space for lease terms ranging from 26 months to 6058 months. The finance leases are generally for 36 month terms.

On April 12, 2022, the Company entered into a sublease agreement with a subtenant for 100% of the ~~leased~~ office space ~~located at~~the Company leased in Santa Monica, California. The sublease agreement commenced on June 3, 2022 and ~~will expire on~~provided for an expiration date of July 17, 2024, unless sooner terminated. On February 16, 2023, the Company, the landlord and the subtenant entered into a lease and sublease termination agreement for the office space, with a termination date of February 28, 2023. The Company ~~has not been relieved of its primary obligation under~~agreed to pay to the ~~original lease~~landlord $0.1 million early termination fee and monthly fixed rent for March and April 2023, and the subtenant agreed to pay to the Company monthly fixed sublease ~~agreement has been classified as an~~payments for March and April 2023. As a result of the lease termination, the Company wrote-off $0.3 million of operating ~~lease.~~

~~Table~~lease right-of-use assets, and $0.6 million and $0.2 million of ~~Contents~~

~~ONTRAK, INC.~~

~~NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS~~

~~(unaudited)~~

current and long-term operating lease liabilities, respectively, resulting in a non-cash gain of $0.5 million included in "Other income, net" on the condensed consolidated statement of operations for the three months ended March 31, 2023.

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~~leases include renewal options and escalation clauses. The renewal options have not been included in the calculation of the operating lease ~~liability~~liabilities and right-of-use ~~asset~~assets 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.

Quantitative information for our leases is as follows (in thousands):

Condensed Consolidated Balance Sheets Balance Sheet Classification September 30, 2022 December 31, 2021
Assets
Operating lease assets "Operating lease right-of-use-assets" $ 712 $ 656
Finance lease assets "Property and equipment, net" 94 186
Total lease assets $ 806 $ 842
Liabilities
Current
     Operating lease liabilities "Current portion of operating lease liabilities" $ 655 $ 595
     Finance lease liabilities "Other accrued liabilities" 184 282
Non-current
     Operating lease liabilities "Long-term operating lease liabilities" 711 932
     Finance lease liabilities "Long-term finance lease liabilities" 8 136
Total lease liabilities $ 1,558 $ 1,945
Three Months Ended
September 30, Nine Months Ended
September 30,
Condensed Consolidated Statements of Operations 2022 2021 2022 2021
Operating lease expense $ 114 $ 183 $ 330 $ 537
Short-term lease rent expense 1 10 6 57
Variable lease expense 16 13 13 31
Operating sublease income (97) — (128) —
Total rent expense, net $ 34 $ 206 $ 221 $ 625
Finance lease expense
   Amortization of leased assets $ 30 $ 79 $ 93 $ 240
   Interest on lease liabilities 4 12 16 34
Total $ 34 $ 91 $ 109 $ 274

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)


Condensed Consolidated Balance Sheets	Balance Sheet Classification	March 31, 2023		December 31, 2022
Assets
Operating lease assets	"Operating lease right-of-use-assets"	$	238	$	632
Finance lease assets	"Property and equipment, net"	41		66
Total lease assets		$	279	$	698
Liabilities
Current
Operating lease liabilities	"Current portion of operating lease liabilities"	$	60	$	653
Finance lease liabilities	"Other accrued liabilities"	86		136
Non-current
Operating lease liabilities	"Long-term operating lease liabilities"	209		546

Total lease liabilities		$	355	$	1,335


	Three Months Ended March 31,
Condensed Consolidated Statements of Operations		2023		2022
Operating lease expense		$	87	$	98
Short-term lease rent expense		1		4
Variable lease expense		15		15
Operating sublease income		(65)		—
Total rent expense		$	38	$	117
Finance lease expense
Amortization of leased assets		$	25	$	31
Interest on lease liabilities		2		7
Total		$	27	$	38


		Nine Months Ended September 30,					Three Months Ended March 31,
Condensed Consolidated Statements of Cash Flows	Condensed Consolidated Statements of Cash Flows	2022		2021		Condensed Consolidated Statements of Cash Flows	2023		2022
Cash paid for amounts included in the measurement of lease liabilities:	Cash paid for amounts included in the measurement of lease liabilities:					Cash paid for amounts included in the measurement of lease liabilities:
Operating cash flows from operating leases	Operating cash flows from operating leases	$	552	$	478	Operating cash flows from operating leases	$	145	$	179
Financing cash flows from finance leases	Financing cash flows from finance leases	226		243		Financing cash flows from finance leases	50		84
Other						Other
Cash received for operating sublease	Cash received for operating sublease	99		—		Cash received for operating sublease	97		—


Other Information	March 31, 2023		December 31, 2022
Weighted-average remaining lease term (years)
Operating leases	3.7		2.5
Financing leases	0.5		0.7
Weighted-average discount rate (%)
Operating leases	16.15	%	12.56	%
Finance leases	13.13	%	12.92	%

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

The following table sets forth maturities of our lease liabilities (in thousands):


	At March 31, 2023
	Operating Leases		Financing Leases		Total
Remainder of 2023	$	76	$	87	$	163
2024	88		—		88
2025	90		—		90
2026	93		—		93
2027	16		—		16


Total lease payments	363		87		450
Less: imputed interest	(94)		(1)		(95)
Present value of lease liabilities	269		86		355
Less: current portion	(60)		(86)		(146)
Lease liabilities, non-current	$	209	$	—	$	209

Note10. Debt

Keep Well Agreement

On April 15, 2022, the Company entered into a Master Note Purchase Agreement (the “Original Keep Well Agreement”) with Acuitas Capital LLC (“Acuitas Capital”), an entity indirectly wholly owned and controlled by Terren S. Peizer, the Company’s former Chief Executive Officer and Chairman, a related party. On August 12, 2022, the Company and Acuitas Capital entered into an amendment to the Original Keep Well Agreement in connection with the appointment of a collateral agent under the Original Keep Well Agreement (the “First Amendment”). On November 19, 2022, the Company and Acuitas Capital entered into a further amendment to the Original Keep Well Agreement, as amended by the First Amendment (the “Second Amendment”), and on December 30, 2022, the Company and Acuitas Capital entered into a further amendment to the Original Keep Well Agreement, as amended by the First Amendment and the Second Amendment (the “Third Amendment”). The Company refers to the Original Keep Well Agreement, as amended by the First Amendment, the Second Amendment and the Third Amendment, as the “Keep Well Agreement” and to Acuitas Capital, together with any of its transferees or affiliates under the Keep Well Agreement, as “Acuitas.”

The Original Keep Well Agreement

Under the terms of the Original Keep Well Agreement, subject to the satisfaction of certain conditions precedent (some of which are described below), the Company could borrow from Acuitas up to $25.0 million, and in connection with each such borrowing, the Company agreed to issue to Acuitas a senior secured note (each, an “Original Keep Well Note”) with a principal amount equal to the amount borrowed. Subject to obtaining approval of the Company’s stockholders as required by applicable Nasdaq listing rules, which approval was obtained at the Company’s annual meeting of stockholders held on August 29, 2022 (the “2022 Annual Meeting of Stockholders”), in connection with each Original Keep Well Note issued by the Company, the Company agreed to issue to Acuitas a warrant to purchase shares of the Company’s common stock (each, an “Original Keep Well Warrant”). The number of shares of the Company’s common stock underlying each Original Keep Well Warrant was equal to (y) the product of the principal amount of the applicable Keep Well Note and 20% divided by (z) the exercise price of the applicable Original Keep Well Warrant, which was $1.69 per share, the Nasdaq Official Closing Price (as reflected on Nasdaq.com) of the Company’s common stock immediately preceding the time the parties entered into the Original Keep Well Agreement. The maturity date of the Original Keep Well Notes was September 1, 2023.

The conditions precedent to the Company’s ability to borrow, and Acuitas’ obligation to lend, under the Original Keep Well Agreement included that (x) the Company have used best efforts to obtain sufficient financing from a third party for the Company to pay and discharge, when due and payable, its obligations, (y) the Company be unable despite its best efforts to obtain such financing from a third party on reasonably acceptable terms, and (z) (1) absent obtaining the funds requested by the Company to borrow under the Original Keep Well Agreement, the Company would not have sufficient unrestricted cash to pay and discharge

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

all of its obligations then due or scheduled to become due within the 30 days following the date of the borrowing request, and (2) there be no conditions or events that, when considered in the aggregate, raise substantial doubt about the Company’s ability to continue as a going concern through August 15, 2023 (the “Funding Condition”).

In connection with entering into the Original Keep Well Agreement, subject to obtaining approval of the Company’s stockholders as required by applicable Nasdaq listing rules, which approval was obtained at the 2022 Annual Meeting of Stockholders, the Company agreed to issue 739,645 shares of its common stock to Acuitas (or an entity affiliated with Acuitas, as designated by Acuitas) (the “Original Commitment Shares”). The Original Commitment Shares were issued to Acuitas in September 2022.

The Second Amendment and the Third Amendment

Below is a summary of certain amendments effected by the Second Amendment and the Third Amendment (as indicated):

•the maturity date of the Original Keep Well Notes (and of any other secured notes issued under the Keep Well Agreement) was extended from September 1, 2023 to June 30, 2024, subject to acceleration for certain customary events of default, including for failure to make payments when due, breaches by the Company of certain covenants and representations in the Keep Well Agreement, defaults by the Company under other agreements related to indebtedness, the Company’s bankruptcy or dissolution, and a change of control of the Company;

•the remaining amount available to be borrowed under the Keep Well Agreement was increased from $10.7 million to $14.0 million and the provision that previously reduced the amount available to be borrowed by the net proceeds the Company received from equity financings was eliminated;

•the funding structure was changed from borrowings as needed from time to time at the election of the Company, to the Company agreeing to borrow, and Acuitas agreeing to lend, subject to the conditions in the Keep Well Agreement (which conditions were also amended as described below), the entire remaining amount of $14.0 million, to be funded as follows: $4.0 million in each of January (which was borrowed on January 5, 2023), March (which was borrowed on March 6, 2023) and June 2023, and $2.0 million in September 2023;

•many of the conditions precedent to the Company’s ability to borrow, and Acuitas’ obligation to lend, were eliminated, including the Funding Condition;

•the Company’s obligation to pay accrued interest on a monthly basis was eliminated, and instead accrued interest will be added to the principal amount of the applicable Original Keep Well Note (and of any other secured note issued under the Keep Well Agreement);

•the financial covenant that the Company’s consolidated recurring revenue be at least $15.0 million was reduced to $11.0 million, however, the satisfaction of such covenant as a condition to funding was eliminated, and certain other affirmative and negative covenants of the Company, the satisfaction of which were conditions to funding, were also eliminated as conditions to funding; and

•as provided in the Third Amendment, (a) the minimum conversion price of the Keep Well Notes (as discussed below) and (b) the minimum dollar amount to which the denominator will be reduced for purposes of calculating the warrant coverage on future borrowings under the Keep Well Agreement (as discussed below), will be $0.15 (subject to adjustment for stock splits or other recapitalizations that affect all common stockholders proportionately).

Conversion of Keep Well Notes

Following approval of the Company’s stockholders obtained at a special meeting of stockholders held in February 2023 (the “2023 Special Meeting of Stockholders”), Acuitas, at its option, has the right to convert the entire principal amount of the secured notes issued under the Keep Well Agreement, plus all accrued and unpaid interest thereon, in whole or in part, into shares of the Company’s common stock at a conversion price equal to the lesser of (i) $0.40 per share and (ii) the greater of (a) the closing price of the Company’s common stock on the trading day immediately prior to the applicable conversion date and (b) $0.15 (the “Conversion Right”). The $0.40 and $0.15 referenced in the preceding sentence are subject to adjustment for stock splits and similar corporate actions.

Each Original Keep Well Note outstanding as of the date of stockholder approval was deemed to be amended to contain the Conversion Right. The Company refers to such Original Keep Well Notes, as so amended, and to all other secured notes issued under the Keep Well Agreement, as the “Keep Well Notes.”

In addition, in connection with the conversion of the principal amount of any Keep Well Note and/or accrued interest thereon into shares of the Company’s common stock (as described above), the Company will issue to Acuitas a five-year warrant to purchase

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

Other Information September 30, 2022 December 31, 2021
Weighted-average remaining lease term (years)
   Operating leases 2.6 2.3
   Financing leases 0.9 1.5
Weighted-average discount rate
   Operating leases 12.56 % 10.73 %
   Finance leases 12.59 % 11.46 %
shares of the Company’s common stock, and the number of shares of the Company’s common stock subject to each such warrant will be equal to (x) 100% of the amount converted divided by (y) the conversion price of the Keep Well Note then in effect, and the exercise price of each such warrant will be equal to the conversion price of the Keep Well Note then in effect, subject to adjustment as described below.

Increase in Warrant Coverage

Following approval of the Company’s stockholders obtained at the 2023 Special Meeting of Stockholders, the exercise price of the warrants issued under the Keep Well Agreement (both the Original Keep Well Warrants outstanding as of the date of the Second Amendment and those issued thereafter) was reduced and to warrant coverage on all previous and future borrowings under the Keep Well Agreement was increased as follows:

•the exercise price of the warrants outstanding at the time of the 2023 Special Meeting of Stockholders was reduced to $0.45 per share, which was the Nasdaq Official Closing Price (as reflected on Nasdaq.com) of the Company’s common stock immediately preceding the time the parties entered into the Second Amendment, and which is subject to future adjustment as described below;

•the number of shares of the Company’s common stock subject to the warrants outstanding at the time of the 2023 Special Meeting of Stockholders (i.e., 1,775,148 shares) was increased to the number of shares that would have been subject to such warrants if the warrant coverage was equal to 100% of the amount borrowed under the Keep Well Agreement in respect of which the applicable Keep Well Warrant was issued (instead of 20%) divided by $0.45 (i.e., 33,333,333 shares, or an additional 31,558,185 shares);

•the warrant coverage on borrowings under the Keep Well Agreement after the date of the Second Amendment was increased to a number of shares of the Company’s common stock equal to (x) 100% of the amount borrowed (instead of 20% of such amount) divided by (y) $0.45 (the “Warrant Coverage Denominator”), subject to future adjustment as described below, and each warrant issued after the date of the Second Amendment has an exercise price equal to $0.45 per share, subject to future adjustment as described below;

•if the reverse stock split that was also approved at the 2023 Special Meeting of Stockholders is effected in the future, then:

▪the exercise price of each warrant issued pursuant to the Keep Well Agreement that is outstanding as of the effective time of the reverse stock split will be reduced to the lesser of (i) the volume-weighted average price of the Company’s common stock over the five trading days beginning on the trading day that commences immediately after the effective time of the reverse stock split (the “Reverse Stock Split Price”) and (ii) the exercise price after giving effect to the adjustment thereto as a result of the reverse stock split (the lesser of (i) and (ii), the “Post-Stock Split Price”), subject to further reduction as described in the bullet immediately below; and

▪the Warrant Coverage Denominator will be reduced to the greater of $0.15 (adjusted for the reverse stock split) and the Post-Stock Split Price, subject to further reduction as described in the bullet immediately below; and

•upon the occurrence of the final funding under the Keep Well Agreement (the date on when such final funding occurs, the “Final Funding Date”):

▪the exercise price of each warrant issued pursuant to the Keep Well Agreement that is outstanding as of the Final Funding Date will be reduced to (i) if the Final Funding Date occurs at any time prior to the time the Reverse Stock Split Price is determined, the closing price of the Company’s common stock on the trading day immediately preceding the Final Funding Date (the “Final Funding Date Price”), or (ii) if the Final Funding Date occurs at any time from and after the time the Reverse Stock Split Price is determined, the lesser of (x) the Post-Stock Split Price and (y) the Final Funding Date Price; and

▪the Warrant Coverage Denominator will be reduced to the lesser of (i) if the Final Funding Date occurs at any time prior to the time the Reverse Stock Split Price is determined, the greater of (a) $0.15 (subject to adjustment for stock splits and the like, including the reverse stock split) and (b) the Final Funding Date Price, or (ii) if the Final Funding Date occurs at any time from and after the time the Reverse Stock Split Price is determined, the greater of (a) $0.15 (subject to adjustment for stock splits and the like, including the reverse stock split) and (b) the lesser of (x) the Post-Stock Split Price and (y) the Final Funding Date Price.

As a result of approvals obtained at the 2023 Special Meeting of Stockholders, the Company issued to the holder of each warrant issued under the Keep Well Agreement outstanding as of the date of such approval, in exchange for such warrant, a new warrant

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

to purchase shares of the Company’s common stock that reflect the amendments to the warrants described above, including the increase in the warrant coverage and the decrease in the exercise price. The Company refers to the new warrants issued in exchange for outstanding warrants and to any warrants issued in connection with future borrowings under the Keep Well Agreement or in connection with the conversion of the principal amount of any Keep Well Note and/or accrued interest thereon into shares of the Company’s common stock (as described above) as the “Keep Well Warrants.”

Additional Commitment Shares

As a result of approvals obtained at the 2023 Special Meeting of Stockholders, the Company issued to Acuitas 2,038,133 additional shares of the Company’s common stock.

Issuance Cap

The Company and Acuitas agreed that (i) under no circumstances will the Company issue any shares upon exercise of any warrant issued under the Keep Well Agreement or upon conversion of any Keep Well Note to the extent that, after giving effect to the issuance of any such shares, Acuitas (together with its affiliates) would beneficially own shares of the Company’s common stock representing more than 90% of the total number of shares of the Company’s common stock outstanding as of the time of such issuance (the “Issuance Cap”); and (ii) in the event of a Fundamental Transaction (as defined in the Second Amendment), regardless of the actual number of securities of the Company beneficially owned by Acuitas and its affiliates at the effective time thereof, Acuitas shall not be entitled to receive any consideration pursuant to such Fundamental Transaction in respect of any shares underlying any of the warrants issued under the Keep Well Agreement or any shares issuable upon conversion of any Keep Well Note that would represent shares in excess of the Issuance Cap if beneficially owned by Acuitas and/or its affiliates immediately prior to such effective time, and all warrants and Keep Well Notes owned or beneficially owned by Acuitas and/or its affiliates at the effective time of such Fundamental Transaction, solely to the extent that, if exercised or converted, such warrants and Keep Well Notes would result in the issuance of such excess shares, will be cancelled and forfeited without consideration therefor, effective as of such effective time; provided, however, that the foregoing shall not affect the Company’s obligation to pay all amounts owed under such Keep Well Notes in connection with such Fundamental Transaction.

Covenants

The Keep Well Agreement contains customary covenants that must be complied with by the Company, including, among other covenants, restrictions on the Company’s ability to incur debt, grant liens, make certain investments and acquisitions, pay dividends, repurchase equity interests, repay certain debt, amend certain contracts, enter into certain asset sale transactions, and covenants that require the Company 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. Subject to certain customary exceptions, the Company also agreed not to incur any indebtedness or issue any shares of its capital stock or capital stock equivalents without Acuitas’ consent until 180 days following ~~table sets forth maturities~~the Final Funding Date.

As mentioned above, the Keep Well Agreement also includes the following financial covenants: a requirement that annualized consolidated recurring revenue for the preceding twelve months be at least $11.0 million tested monthly, and a requirement that consolidated liquidity must be greater than $5.0 million at all times. The Company was in compliance with all of ~~our lease liabilities~~its covenants under the Keep Well Agreement as of March 31, 2023.

Borrowings Under the Keep Well Agreement

In February 2023, as a result of approvals obtained at the 2023 Special Meeting of Stockholders relating to the terms provided for in the Second Amendment, as described above, the Company determined that terms of the Keep Well Agreement as amended by the Second Amendment is substantially different from the terms in the Original Keep Well Agreement and that extinguishment of the senior secured notes issued under the Original Keep Well Agreement and recognition of a new debt instrument for the senior secured notes under the Original Keep Well Agreement as amended by the Second Amendment is appropriate. As such, in February 2023, the Company recorded the extinguishment of the senior secured notes under the Original Keep Well Agreement, resulting in a loss on extinguishment of debt of $2.2 million, which was recorded as part of additional paid in capital since the debt transaction is with Acuitas, a significant shareholder. The new debt instrument includes an embedded conversion feature, as described above, which was accounted for in accordance with ASU 2020-06, "Accounting for Convertible Instruments and Contracts in an Entity's Own Equity," which the Company adopted on January 1, 2022, and accordingly the Company did not

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

separately present such embedded conversion feature in equity but rather accounted for the convertible debt wholly as debt. The Company also assessed and determined that the Keep Well Warrants qualified for equity classification and applied the relative fair value method to allocate proceeds from the debt issuance to the Keep Well Warrants. The Company incurred $0.3 million of debt issuance costs related to the Second Amendment. The fair value of the Keep Well Warrants and new debt issuance costs are recorded as part of debt discount and accreted using the effective interest method over the contractual term of the debt.

As of March 31, 2023, the Company borrowed a total of $19.0 million under the Keep Well Agreement. Each borrowing was evidenced with the issuance of a Keep Well Note, which will accrue interest based on the adjusted term SOFR for each interest period. At March 31, 2023, the Company had a total of $1.4 million of accrued paid-in-kind interest, of which $0.8 million related to the three months ended March 31, 2023, related to the Keep Well Notes, and the effective weighted average interest rate for the Keep Well Notes was 20.34%. At March 31, 2023, $6.0 million remained to be funded under the Keep Well Agreement: $4.0 million in June 2023 and $2.0 million in September 2023.

The net carrying amounts of the liability components consists of the following (in thousands):

September 30, 2022
Operating Leases Financing Leases Total
Remainder of 2022 $ 205 $ 59 $ 264
2023 760 139 899
2024 420 — 420
2025 90 — 90
2026 and thereafter 109 — 109
Total lease payments 1,584 198 1,782
Less: imputed interest (218) (6) (224)
Present value of lease liabilities 1,366 192 1,558
Less: current portion (655) (184) (839)
Lease liabilities, non-current $ 711 $ 8 $ 719


	March 31, 2023		December 31, 2022
Principal	$	20,402	$	11,553
Less: debt discount	(10,598)		(1,488)
Net carrying amount	$	9,804	$	10,065

The following table presents the interest expense recognized related to the Company's borrowings under the Keep Well Agreement and the 2024 Notes (in thousands):

~~Note~~


	Three Months Ended March 31,
		2023		2022
Contractual interest expense		$	848	$	1,160
Accretion of debt discount		521		242
Total interest expense		$	1,369	$	1,402

Securities Issued Under the Keep Well Agreement During 2022

~~10. Debt~~

Following approval of the Company’s stockholders obtained at the annual stockholder meeting held on August 29, 2022, (a) on September 2, 2022, the Company issued 739,645 shares of its common stock (the “Commitment Shares”) to Acuitas and (b) in August and September 2022, the Company issued to Acuitas warrants to purchase a total of 1,301,775 shares of the Company’s common stock. The Commitment Shares and such warrants, which qualified for equity classification, were accounted for as debt discount based on their respective fair values determined at each issuance dates. The warrants have a term of five years and had an exercise price equal to $1.69, which was the closing price of the Company’s common stock as reported on Nasdaq immediately preceding the time the parties entered into the Keep Well Agreement. As discussed above, as result of approvals obtained at the 2023 Special Meeting of Stockholders, each warrant issued under the Keep Well Agreement outstanding as of the date of such approval was exchanged for a new warrant to purchase shares of the Company’s common stock that reflect the amendments to the warrants described above, including the increase in the warrant coverage and the decrease in the exercise price.

Stockholders Agreement

Under the terms of the Keep Well Agreement, if Acuitas' beneficial ownership of the Company’s capital stock equals at least a majority of the voting power of the Company’s outstanding capital stock, Acuitas Capital and the Company agreed to enter into a stockholders agreement (the “Stockholders Agreement”) pursuant to which, during any period that Acuitas’ beneficial ownership of the Company’s capital stock equals at least 50% of the Company’s outstanding capital stock, Acuitas agreed to vote the shares of the Company’s common stock it beneficially owns (a) in favor of an amendment to the certificate of incorporation or bylaws of the Company that would require the Company’s board of directors to include not fewer than three independent directors at all

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

times, (b) in favor of the election or re-election of independent directors nominated for election by the Company’s board of directors or by the nominating committee thereof unless the failure of a nominee to be elected or re-elected to the Company’s board of directors would not result in the Company having fewer than three independent directors following such election, and (c) against any proposal or action that would result in the Company’s board of directors having fewer than three independent directors at all times. In addition, under the Stockholders Agreement, the parties agreed that, during any period that such beneficial ownership of Acuitas affiliates equals at least 50% of the Company’s outstanding capital stock, the Company will not enter into any transaction between the Company or any of its affiliates, on the one hand, and Acuitas or any of its affiliates (excluding the Company and its affiliates), on the other hand, unless it is approved by a majority of the independent directors then serving on the Company’s board of directors. The Stockholders Agreement was entered into on February 21, 2023.

2024 Notes

The Company was 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”), 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, 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")~~.On~~. On February 14, 2022, the Company repaid $9.0 million of the outstanding balance of the 2024 Notes. On March 8, 2022, the Company entered into an Eight Amendment to Note Purchase Agreement with the Holders (the "Eighth Amendment"), which among other things, amended certain financial covenants intended to increase the Company's financial flexibility, required a prepayment of $11.0 million of the outstanding loan balance without the incurrence of a yield maintenance premium or prepayment fee, which prepayment was made by the Company on March 8, 2022, placed restrictions on the declaration and payment of dividends on the Company's Series A Preferred Stock until after December 31, 2022, and elimination of LIBOR as a reference rate such that the 2024 Notes only bear interest at the Base Rate, as defined in the Note Agreement, going forward. During the first half of 2022, the Company prepaid a total of $31.7 million (including the above mentioned $11.0 million) of the 2024 Notes, and wrote off $2.0 million of debt issuance costs related to the 2024 Notes.

2022. On July 15, 2022, the Company entered into a payoff letter agreement with the ~~Holders~~holders of ~~our~~the 2024 Notes, pursuant to which the Company paid in full the outstanding loan balance under the 2024 Notes of approximately $7.6 million, which included $0.1 million of accrued interest as of July 15, 2022. ~~The Company funded the payoff with $2.6 million of its cash on hand and $5 million of borrowing under the Keep Well Agreement, as discussed below.~~ All obligations owing by the Company and the other Note Parties (as defined in the Note Purchase Agreement) under the Note Purchase Agreement were released, discharged and satisfied in full, the Note Purchase Agreement and all other Note Documents (as defined in the Note Agreement) were

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~~ONTRAK, INC.~~

~~NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS~~

~~(unaudited)~~

terminated (other than those provisions therein that expressly survive termination), and all liens securing the Company’s obligations under the Note Agreement were released. ~~During the three months ended September 30,~~In July 2022, the Company wrote off the remaining $1.3 million of debt issuance costs related to the 2024 Notes.

In connection with entering into the Eighth Amendment, the Company issued to Special Situations Investing Group II, LLC ~~(the “Holder”~~(“Special Situations”), a ~~Purchase Warrant for Common Shares~~warrant (the “Amendment Warrant”) ~~pursuant~~ to ~~which the Holder may~~ purchase up to 111,680 shares of the ~~Company’s~~Company's common ~~stock in an aggregate amount of up 111,680 shares.~~stock. Also, the Company agreed to issue to ~~the Holder,~~Special Situations, beginning March 31, 2022 and until the earlier of (i) date the 2024 Notes have been paid in full and (ii) October 31, 2022, additional warrants (each a “Ticking Warrant” ~~and together with the Amendment Warrant, the “Warrants”~~)~~, having the same terms as the Amendment Warrant,~~ to purchase a number of shares of the Company's common stock equal to $47,500, to be calculated based on the volume weighted average trading price of the Company’s common stock during the five (5) trading day period immediately preceding the date such Ticking Warrant is issued, not to exceed 7% of the outstanding shares of the Company's common stock on the date of the Eighth Amendment. The ~~Warrants were offered~~Amendment Warrant and ~~sold to the Holder in a private placement exempt from registration under the Securities Act. The Warrants may be exercised by the Holder at~~each Ticking Warrant have an exercise price equal to $0.01 per share and ~~will~~ expire on September 24, 2026. As of ~~September 30, 2022,~~March 31, 2023, Ticking Warrants ~~issued to the Holder~~ to purchase 118,931 shares of the Company's common stock were outstanding. The Company assessed and separated the ~~Warrants~~warrants into liability and equity components, wherein the Amendment Warrant qualified for equity classification and the Ticking Warrants qualified for liability classification. See Notes 8 and 11 for more information.

~~Keep Well Agreement~~

On April 15, 2022, the Company entered into the Keep Well Agreement with Acuitas pursuant to which, subject to specified conditions, the Company may borrow up to $25.0 million (the “Available Amount”) from time to time through the earlier of (a) the date on which the Company files a report with the SEC that states there is substantial doubt regarding the Company’s ability to continue as a going concern during the twelve month period following such filing and (b) September 1, 2023. In connection with each borrowing under the Keep Well Agreement, the Company is required to issue senior secured notes (each, a "Keep Well Note") to Acuitas, or an entity affiliated with it ("Purchaser"), in return for the specified face amount of such senior secured note. As a result of issuing a Keep Well Note, the Company’s obligations under the Keep Well Agreement have been unconditionally guaranteed by certain of the Company’s subsidiaries and secured by a first priority lien on substantially all of the present and future property and assets of the Company and such subsidiaries, in each case, subject to customary exceptions and exclusions. The Keep Well Notes accrue interest based on a variable rate based on the 30 day tenor Secured Overnight Financing Rate plus a corresponding applicable margin (the "adjusted term SOFR"). The Keep Well Notes are due on September 1, 2023, subject to acceleration for certain customary events of default, including for failure to make payments when due, breaches by the Company of certain covenants and representations in the Keep Well Agreement, defaults by the Company under other agreements related to indebtedness, the Company’s bankruptcy or dissolution, and a change of control of the Company. In addition to customary conditions precedent, Purchaser's obligation to purchase Keep Well Notes is subject to the condition that (x) the Company used best efforts to obtain sufficient financing from a third party for the Company to pay and discharge, when due and payable, its obligations, (y) the Company was unable despite its best efforts to obtain such financing from a third party on reasonably acceptable terms, as determined by a majority of the independent directors of the Company (such determination to be made as if the financing contemplated by the Keep Well Agreement were not available to the Company; and (z) (1) absent obtaining the funds requested by the Company, the Company will not have sufficient unrestricted cash to pay and discharge all its obligations then due or scheduled to become due within the 30 days following the date of the request, and (2) there are no conditions or events that, when considered in the aggregate, raise substantial doubt about the Company’s ability to continue as a going concern through August 15, 2023, after giving effect to the receipt of the funds requested and the remaining Available Amount (the "Remaining Amount").

The Keep Well Agreement contains customary covenants that must be complied with by the Company, including, among other covenants, restrictions on the Company’s ability to incur debt, grant liens, make certain investments and acquisitions, pay dividends, repurchase equity interests, repay certain debt, amend certain contracts, enter into certain asset sale transactions, and covenants that require the Company 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 Keep Well Agreement also includes the following financial covenants: a requirement that annualized consolidated recurring revenue for 2022, and during 2023, consolidated recurring revenue for the preceding twelve months be at least $15.0 million tested monthly; and a requirement that consolidated liquidity must be greater than $5.0 million at all times. The Company was in compliance with all of its debt covenants as of September 30, 2022.

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~~ONTRAK, INC.~~

~~NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS~~

~~(unaudited)~~

Other

During the three months ended September 30, 2022, the Company borrowed a total of $11.0 million under the Keep Well Agreement, and applied a portion of the proceeds therefrom to pay off in full all outstanding amounts owed by the Company under the 2024 Notes, discussed above, and to fund the Company's working capital requirements. Each borrowing was completed with the issuance of a Keep Well Note, which will accrue interest based on the adjusted term SOFR for each interest period. At September 30, 2022, the effective weighted average interest rate for the Keep Well Notes was 18.25%. At September 30, 2022, the Remaining Amount under the Keep Well Agreement was approximately $10.7 million, which reflects the reduction in the Remaining Amount resulting from the $3.3 million of net proceeds the Company raised in the equity offering (discussed above in Note 7).

~~In accordance with the terms of the Keep Well Agreement, following the approval of the Company’s stockholders at the annual stockholder meeting held on~~ August 29, 2022, (a) on September 2, 2022, the Company issued 739,645 shares of its common stock (the “Commitment Shares”) to Acuitas and (b) as of September 30, 2022, the Company has issued to Acuitas Keep Well Warrants to purchase 1,301,775 shares of the Company’s common stock. The Commitment Shares and Keep Well Warrants, which qualified for equity classification, were accounted for as debt discount based on their respective fair values determined at each issuance dates. The Keep Well Warrants have a term of five years and an exercise price equal to $1.69, which was the closing price of the Company’s common stock as reported on Nasdaq immediately preceding the time the parties entered into the Keep Well Agreement. The Keep Well Warrants contain customary adjustment provisions in the event of stock splits, combinations, and similar transactions, and will provide specified information, registration and indemnification rights to the holder of such Keep Well Warrants. See Note 14 for information about an amendment to the Keep Well Agreement completed onthrough November ~~19, 2022.~~

If Acuitas' beneficial ownership of the Company’s capital stock equals at least a majority of the voting power of the Company’s outstanding capital stock following the issuance of any of the Commitment Shares, a Keep Well Warrant or any shares of common stock issuable upon exercise of a Keep Well Warrant, Acuitas agreed to enter into a stockholders agreement with the Company (the “Stockholders Agreement”) pursuant to which Acuitas would agree to vote the shares of the Company’s common stock it beneficially owns (a) in favor of an amendment to the certificate of incorporation or bylaws of the Company that would require the Company’s board of directors to include not fewer than three independent directors at all times, (b) in favor of the election or re-election of independent directors nominated for election by the Company’s board of directors or by the nominating committee thereof unless the failure of a nominee to be elected or re-elected to the Company’s board of directors would not result in the Company having fewer than three independent directors following such election, and (c) against any proposal or action that would result in the Company’s board of directors having fewer than three independent directors at all times. In addition, under the Stockholders Agreement, the parties will agree that the Company will not enter into any transaction between the Company or any of its affiliates, on the one hand, and Acuitas or any of its affiliates (excluding the Company and its affiliates), on the other hand, unless it is approved by a majority of the independent directors then serving on the Company’s board of directors.

~~The net carrying amounts of the liability components consists of the following (in thousands):~~

September 30, 2022 December 31, 2021
Principal $ 11,000 $ 39,194
Less: debt discount (1,782) (3,402)
Net carrying amount $ 9,218 $ 35,792

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~~ONTRAK, INC.~~

~~NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS~~

~~(unaudited)~~

~~The following table presents total interest expense recognized related to the Company's borrowings under the 2024 Notes and Keep Well Agreement (in thousands):~~

Three Months Ended
September 30, Nine Months Ended
September 30,
2022 2021 2022 2021
Contractual interest expense $ 320 $ 1,821 $ 2,264 $ 5,403
Accretion of debt discount 225 224 729 635
Total interest expense $ 545 $ 2,045 $ 2,993 $ 6,038

~~Other~~

In November 2021, the Company financed a portion of its insurance premiums for the new term totaling $3.1 million at an annual effective rate of 2%, payable in ten equal monthly installments beginning on December 8, 2021 and a down payment of $0.6 million at inception. In August 2022, the Company financed a ~~portion~~total of $2.5 million of its insurance premiums ~~for the new term totaling $0.4 million~~ at an annual weighted average effective rate of ~~2.3%~~5.9%, payable in 10 to 11 equal monthly installments ~~beginning on September 1, 2022~~ and a down ~~payment of $0.03~~payments totaling $0.2 million at ~~inception.~~inception of each financing agreement. At ~~September 30, 2022~~March 31, 2023 and December 31, ~~2021,~~2022, there was ~~a total of $0.3~~$1.4 million and ~~$2.3~~$2.0 million, respectively, relating to ~~this~~such financed insurance premium outstanding, which ~~was~~were included as part of "Other accrued liabilities" on our condensed consolidated balance sheet as of each respective period.

Note 11. Fair Value Measurements

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

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 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):

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	Balance as of March 31, 2023
	Level I		Level II		Level III		Total
Letter of credit (1)	$	204	$	—	$	—	$	204
Total assets	$	204	$	—	$	—	$	204

Contingent consideration (2)	$	—	$	—	$	64	$	64
Warrant liabilities (3)	—		—		62		62
Total liabilities	$	—	$	—	$	126	$	126

~~ONTRAK, INC.~~

~~NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS~~

~~(unaudited)~~

Balance as of September 30, 2022
Level I Level II Level III Total
Letter of credit (1) $ 204 $ — $ — $ 204
Total assets $ 204 $ — $ — $ 204
Contingent consideration (2) $ — $ — $ 64 $ 64
Warrant liabilities (3) — — 55 55
Total liabilities $ — $ — $ 119 $ 119


		Balance as of December 31, 2021									Balance as of December 31, 2022
		Level I		Level II		Level III		Total			Level I		Level II		Level III		Total
Letter of credit (1)	Letter of credit (1)	$	306	$	—	$	—	$	306	Letter of credit (1)	$	204	$	—	$	—	$	204
Total assets	Total assets	$	306	$	—	$	—	$	306	Total assets	$	204	$	—	$	—	$	204

Contingent consideration (2)	Contingent consideration (2)	$	—	$	—	$	357	$	357	Contingent consideration (2)	$	—	$	—	$	64	$	64
Warrant liabilities (3)										Warrant liabilities (3)	—		—		43		43
Total liabilities	Total liabilities	$	—	$	—	$	357	$	357	Total liabilities	$	—	$	—	$	107	$	107

___________________

(1) ~~Amounts relating to letter of credit were included~~Included in "Restricted cash - current" and "Restricted cash - long term" on our condensed consolidated balance sheets as of ~~September 30, 2022~~March 31, 2023 and December 31, ~~2021.~~2022, respectively.

(2) ~~Contingent consideration was included~~Included in "Other accrued liabilities" on our condensed consolidated balance sheets as of ~~September 30, 2022~~March 31, 2023 and December 31, ~~2021.~~2022..

(3) Relates to Ticking ~~Warrants~~Warrant issued ~~as of September 30, 2022~~ in connection with the Eight Amendment to the 2024 Notes executed on March 8, 2022, as discussed in ~~Notes 8 and~~Note 10 above, and included in "Other accrued liabilities" on our condensed consolidated balance sheet as of ~~September 30, 2022.~~March 31, 203.

Financial instruments classified as Level III in the fair value hierarchy as of ~~September 30, 2022~~ March 31, 2023 and December 31, ~~2021~~2022 represent liabilities measured at market value on a recurring basis and include warrant liabilities relating to Ticking Warrants issued in connection with an amendment to our debt agreement for the 2024 Notes, as discussed in Note 10, and 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 warrant liabilities and contingent consideration liability are ~~being~~ marked-to-market each quarter-end until they are completely settled or expire. The fair value of the warrant liabilities iswas valued using the Black-Scholes pricing model, using both observable and unobservable inputs and assumptions consistent with those

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

used in the estimate of fair value of employee stock options. The fair value of the contingent consideration liability iswas valued using the Monte Carlo simulation model, using both observable and unobservable inputs and assumptions.

The carrying value of the ~~2024~~Keep Well Notes is estimated to approximate their respective fair ~~value~~values as the variable interest rate of the ~~Senior Secured Notes~~notes approximates the market rate for debt with similar terms and risk characteristics.

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, ~~2021~~	$	~~357~~
~~Settlement of contingent consideration~~	~~(293)~~
~~Balance as of September 30,~~ 2022 and March 31, 2023	$	64

The $0.1 million of contingent consideration ~~which resulted from~~liability, relating to a stock price guarantee ~~provided as a part of~~in our acquisition of LifeDojo Inc. completed in October 2020, ~~remaining~~was included in "Other accrued liabilities" on our condensed consolidated balance sheets as of ~~September 30, 2022 relates to 7,428 shares of common stock remaining to be issued, pending response for stockholder information.~~March 31, 2023 and December 31, 2022.

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~~ONTRAK, INC.~~

~~NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS~~

~~(unaudited)~~

Warrant Liabilities


	Level III Warrant Liabilities
Balance as of December 31, ~~2021~~2022	$	—43
~~Warrants issued - Ticking Warrants~~	~~176~~
~~Gain~~Loss on change in fair value of warrant liabilities	~~(121)~~19

Balance as of ~~September 30, 2022~~March 31, 2023	$	5562

The assumptions used in the Black-Scholes warrant-pricing model were determined as follows:


	~~September 30, 2022~~March 31, 2023
Volatility	100.0	%
Risk-free interest rate	~~4.25~~3.81	%
Weighted average expected life (in years)	~~4.04~~3.54
Dividend yield	0	%

Note 12. 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

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ONTRAK, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

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:

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~~ONTRAK, INC.~~

~~NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS~~

~~(unaudited)~~

•general administrative support services;

•information systems;

•recordkeeping;

•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,
2022 December 31,
2021
Cash and cash equivalents $ 887 $ 1,356
Unbilled receivables 59 80
Prepaid and other current assets — 48
Total assets $ 946 $ 1,484
Accounts payable $ 5 $ 10
Accrued liabilities 60 11
Deferred revenue 39 40
Payables to Ontrak 1,726 1,841
Total liabilities $ 1,830 $ 1,902

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	March 31, 2023		December 31, 2022
Cash and cash equivalents	$	1,037	$	686
Accounts receivable	—		381
Unbilled receivables	91		90
Prepaid and other current assets	31		116
Total assets	$	1,159	$	1,273

Accounts payable	$	1	$	—
Accrued liabilities	124		119
Deferred revenue	58		52
Payables to Ontrak	2,025		1,602
Total liabilities	$	2,208	$	1,773

Note 13. 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,~~report, we ~~were~~are 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 Contingencies

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

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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 has been~~was taken under submission, with no oral argument. Prior to any ruling being issued on the motion to dismiss, on March 29, 2023, lead plaintiff filed a Second Amended Complaint. The Second Amended Complaint (1) adds Jonathan Mayhew as a defendant; (2) expands the purported class period to August 5, 2020 through August 19, 2021; and (3) now includes allegations that the defendants additionally intentionally or recklessly made false and misleading statements and omissions regarding the Company’s relationship with its then-second largest customer, Cigna, in various press releases, SEC filings and conference calls with investors on May 6, 2021 and August 5, 2021. Pursuant to the Court’ scheduling order, the Company’s response to the Second Amended Complaint is due on or before May 15, 2023. The Company believes that the allegations lack merit and intends 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

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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. On December 1, 2021, a similar shareholder derivative action was filed in the United States District Court for the District of Delaware, entitled Vega v. Peizer, Case No. 1:21-cv-01701, for violation of Section 20(a) of the Exchange Act, breach of fiduciary duty, unjust enrichment 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. 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 December 7, 2021, the Court in the Central District of California consolidated the two Central District of California actions under the Aptor case caption and number (the "Consolidated Derivative Action"), stayed the action pending a ruling on the Motion to Dismiss in the Consolidated Class Action and ordered plaintiffs to file a consolidated amended complaint within fourteen (14) days of a ruling on the Motion to Dismiss in the Consolidated Class Action. On February 7, 2022, the Court in the District of Delaware extended the deadline for defendants to respond to the complaint in the Vega action to April 8, 2022. On March 21, 2022 the Court in the District of Delaware granted plaintiff’s unopposed motion to transfer the case to the United States District Court for Central District of California in the interest of judicial efficiency due to the Consolidated Class Action and Consolidated Derivative Action already pending in that district, and that same day the case was transferred into the United States District Court for Central District of California and given the new Case No. 2:22-cv-01873-CAS-AS. On April 11, 2022, the Court stayed the action pending a ruling on the Motion to Dismiss in the Consolidated Class Action and ordered plaintiffs to inform defendants regarding their intention to amend their initial complaint within thirty (30) days of said ruling. Although all of the claims asserted in these actions 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 these actions are without merit and intend to defend themselves vigorously.

On February 28, 2022, a purported securities class action was filed in the Superior Court of California for Los Angeles County, entitled Braun v. Ontrak, Inc., et al., Case No. 22STCV07174. The plaintiff filed this action purportedly on behalf of a putative class of all purchasers of the 9.50% Series A Cumulative Perpetual Preferred Stock (the “Preferred stock”) of Ontrak pursuant to Registration Statements and Prospectuses issued in connection with Ontrak’s August 21, 2020 initial public stock offering, its September 2020 through December 2020 “at market” offering, and its December 16, 2020 follow-on stock offering (collectively, the “Offerings”). The plaintiff brings this action against the Company; its officers: Terren S. Peizer, Brandon H. LaVerne, and Christopher Shirley; its board members: Richard A. Berman, Sharon Gabrielson, Gustavo Giraldo, Katherine B. Quinn, Robert Rebak, Diane Seloff, Michael Sherman, and Edward Zecchini; and the investment banking firms that acted as underwriters for the Offerings: B. Riley Securities, Inc., Ladenburg Thalmann & Co., Inc., William Blair & Company, LLC, Aegis Capital Corp., Insperex LLC (f/k/a Incapital LLC), The Benchmark Company, LLC, Boenning & Scatteredgood, Inc., Colliers Securities, LLC, Kingswood Capital Markets, and ~~ThinkEquity.~~ThinkEquity (the "Underwriters"). The plaintiff asserts three causes of action alleging that Ontrak violated § 11, §

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12(a)(2), and § 15 of the Securities Act of 1933, respectively, (1) by failing to disclose facts required to be disclosed under SEC Regulation S-K items 105 and 303 – that Aetna had turned off the data feed of customer records to Ontrak citing dissatisfaction with the Company’s value proposition and billing practices and thereafter submitted a CAP to which Ontrak’s senior executives were unable to effectively ~~respond to;~~respond; and (2) by issuing allegedly false or misleading statements in its Registration Statements and Prospectuses: (a) regarding Ontrak’s growing customer base; (b) regarding its ability to scale its operations; (c) that revenue from a limited number of its customers would continue; (d) that its services are provided to customers continuously; (e) that revenue increases were attributable to continued expansion of the Ontrak program; and (f) regarding the healthcare experience of its executives. The plaintiff seeks damages in an indeterminate amount. On July 7, 2022, the defendants filed demurrers to the complaint. On October 4, 2022, the Court issued its ruling, allowing the case to proceed but with a narrowed scope. Specifically, of the six alleged misleading statements, only two remain (that Ontrak had a growing “growing customer base” and that Ontrak’s revenue growth was attributed to “[t]he continued expansion of [its] Ontrak program with [its] existing health plan customers”). The Court sustained the Company’s demurrer to the second cause of action, for violation of Section 12 of the Securities Act of 1933, with leave to amend. The Company believes that the remaining allegations lack merit and intends to defend against the action vigorously.

On February 3, 2022, a stockholder of the Company made a demand for inspection of books and records pursuant to Section 220 of the Delaware General Corporation Law, in which the stockholder alleged that (a) disclosures in advance of a meeting of stockholders scheduled for March 2022 were inadequate and (b) certain sales of Ontrak stock by Terren S. Peizer were suspiciously timed. In response to the letter, the Company issued supplemental disclosures in advance of the meeting of stockholders and made certain revisions to its insider trading policy. On August, 2, 2022, the parties executed a settlement agreement, in which the stockholder agreed that its demands were met, and Ontrak agreed to pay the stockholder’s attorneys’ fees of $75,000. That amount has been paid in full.

~~Note 14. Subsequent Event~~

On November ~~19,~~18, 2022, plaintiff filed his Motion for Class Certification. On February 17, 2023, the Company filed its opposition and ~~Acuitas entered into an amendment to~~joined in the ~~Keep Well Agreement (the "Second Amendment"), pursuant to which, among other things:~~

~~• the maturity date~~opposition of the ~~Keep Well Notes was extended from September~~Underwriters. On April 17, 2023, Plaintiff’s filed their reply. On May 1, 2023, ~~to June 30, 2024;~~

• the remaining amount available to be borrowed under the Keep Well Agreement was increased from $10.7 million to $14.0 million and the provision in the Keep Well Agreement that previously reduced the amount available to be borrowed by the net proceeds the Company received from equity financings was eliminated;

• the funding structure was changed from borrowings as needed from time to time at the election of the Company, to the Company agreeing to borrow, and Acuitas agreeing to lend, subject to the conditions in the Keep Well Agreement (which conditions were also amended as described below), the entire remaining amount of $14.0 million, to be funded as follows: $4.0 million in each of January, March and June 2023 and $2.0 million in September 2023;

• many of the conditions precedent to the Company’s ability to borrow, and Acuitas’ obligation to lend, were eliminated, including the conditions that (x) the Company have used best efforts to obtain sufficient financing from a third party for the Company to pay and discharge, when due and payable, its obligations, (y) the Company being unable despite its best efforts to obtain such financing from a third party on reasonably acceptable terms, and (z) (1) absent obtaining the funds requested by the Company, the Company will not have sufficient unrestricted cash to pay and discharge all of its obligations then due or scheduled to become due within the 30 days following the date of the request, and (2) there are no conditions or events that, when considered in the aggregate, raise substantial doubt about the Company’s ability to continue as a going concern through August 15, 2023;

~~• the Company’s obligation to pay accrued interest on a monthly basis was eliminated, and instead accrued interest will be added to the principal amount of the applicable Keep Well Note;~~

• the financial covenant that the Company’s consolidated recurring revenue be at least $15.0 million was reduced to $11.0 million, however, the satisfaction of such covenant as a condition to funding was eliminated, and certain other affirmative and negative covenants of the Company, the satisfaction of which were conditions to funding, were also eliminated as conditions to funding;

• subject to stockholder approval, the exercise price of the currently outstanding Keep Well Warrants will be reduced to $0.45, which was the consolidated closing bid price of the Company’s common stock as reported on Nasdaq immediately preceding the time the parties ~~entered into the Second Amendment and which will be subject to future adjustment as described below;~~

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~~coverage was equal~~joint stipulation permitting defendants to ~~100% of the amount borrowed under the Keep Well Agreement in respect of which the applicable Keep Well Warrant was issued (instead of 20%) divided by $0.45;~~

~~• subject to stockholder approval, the warrant coverage~~file a sur-reply no later than May 26, 2023. The hearing on future borrowings under the Keep Well Agreement will be increased to a number of shares of the Company's common stock equal to (x) 100% of the amount borrowed under the Keep Well Agreement (instead of 20% of such amount) divided by (y) $0.45 (the "Warrant Coverage Denominator"), subject to future adjustment as described below, and each Keep Well Warrant issued going forward will have an exercise price equal to $0.45 per share, subject to future adjustment as described below;

• the Company agreed to solicit stockholder approval of a 1:5 reverse stock split of the Company’s outstanding common stock, and, if obtained, to effect such reverse stock split as soon as practicable thereafter;

~~• subject to stockholder approval, if the reverse stock split~~plaintiff’s Motion is effected, the Warrant Coverage Denominator and the exercise price of each warrant issued pursuant to the Keep Well Agreement that is then outstanding will be reduced to the lesser of (i) the volume-weighted average price of the Company’s common stock over the ~~five~~ trading days beginning on the trading day that commences immediately after the effective time of the reverse stock split (the “Reverse Stock Split Price”) and (ii) the exercise price after giving effect to the adjustment thereto as a result of the reverse stock split (the lesser of (i) and (ii), the “Post-Stock Split Price”), subject to further reduction as described below;

• subject to stockholder approval, the Warrant Coverage Denominator and the exercise price of each warrant issued pursuant to the Keep Well Agreement that is outstanding as of the final funding date under the Keep Well Agreement will be reduced to (i) if the final funding date occursset for June 16, 2023, at any time prior to the time the Reverse Stock Split Price is determined, the closing price of the Company’s common stock on the trading day immediately preceding the final funding date (the “Final Funding Date Price”), or (ii) if the final funding date occurs at any time from and after the time the Reverse Stock Split Price is determined, the lesser of (x) the Post-Stock Split Price and (y) the Final Funding Date Price;

• subject to stockholder approval, Acuitas, at its option, will have the right to convert the entire principal amount of the Keep Well Notes outstanding, plus all accrued and unpaid interest thereon, in whole or in part, into shares of the Company’s common stock at a conversion price equal to the lesser of $0.40 per share and the closing price of the Company’s common stock on the trading day immediately prior to the applicable conversion date;

• subject to stockholder approval, in connection with the conversion of the principal amount of any Keep Well Note and/or accrued interest thereon into shares of the Company’s common stock (as described above), the Company will issue to Acuitas a five-year warrant to purchase shares of the Company’s common stock; the number of shares of the Company’s common stock subject to each such warrant will be equal to (x) 100% of the amount converted divided by (y) the conversion price of the Keep Well Note then in effect, and the exercise price of each such warrant will be equal to the conversion price of the Keep Well Note then in effect, subject to adjustment as described above;

~~• subject to stockholder approval, the Company will issue to Acuitas 2,038,133 additional Commitment Shares;~~

• the parties agreed that under no circumstances will the Company issue any shares upon exercise of any warrant issued under the Keep Well Agreement or upon conversion of any Keep Well Note to the extent that, after giving effect to the issuance of any such shares, Acuitas (together with its affiliates) would beneficially own shares of the Company's common stock representing more than 90% of the total number of shares of the Company's common stock outstanding as of the time of such issuance (the “Issuance Cap”); and that in the event of a Fundamental Transaction (as defined in the Second Amendment), regardless of the actual number of securities of the Company beneficially owned by Acuitas and its affiliates at the effective time thereof, Acuitas shall not be entitled to receive any consideration pursuant to such Fundamental Transaction in respect of any shares underlying any of the warrants issued under the Keep Well Agreement or any shares issuable upon conversion of any Keep Well Note that would represent shares in excess of the Issuance Cap if beneficially owned by Acuitas and/or its affiliates immediately prior to such effective time, and all warrants and Keep Well Notes owned or beneficially owned by Acuitas and/or its affiliates at the effective time of such Fundamental Transaction, solely to the extent that, if exercised or converted, such warrants and Keep Well Notes would result in the issuance of such excess shares, will be cancelled and forfeited without consideration therefor, effective as of such effective time; provided, however, that the foregoing shall not affect the Company’s obligation to pay all amounts owed under such Keep Well Notes in connection with such Fundamental Transaction; and

• the Company agreed, subject to certain customary exceptions, not to incur any indebtedness or issue any shares of its capital stock or capital stock equivalents without Acuitas’ consent until 180 days following the final funding date under the Keep Well Agreement.10:30 a.m.

The ~~Company agreed to seek stockholder approval~~parties are now engaged in the early stages of discovery. On February 28, 2023, the parties filed a joint stipulation requesting that the Court set the following dates: (1) May 1, 2023, for the ~~amendments~~parties to submit a further case management schedule; (2) May 17, 2023, for a further case management conference; and (3) September 30, 2023, for substantial completion of document productions. On May 1, 2023, the parties filed another joint stipulation requesting that the Court set the following additional dates: (1) January 31, 2024, for the parties to complete fat discovery; (2) May 30, 2024, for the parties to complete expert discovery; (3) June 14, 2024, for the parties to file dispositive motions; and (4) October 15, 2024, for trial.

Securities Investigation

On November 15, 2022, the Company received a notification from the Securities and Exchange Commission, Division of Enforcement, that it is conducting an investigation captioned "In the Matter of Trading in the Securities of Ontrak, Inc. (HO-14340)" and issued a preservation letter as well as a subpoena for documents relating to the ~~Keep Well Agreement described above~~investigation. The notification indicates the investigation is a fact-finding inquiry for compliance with federal securities laws and should not be construed as an indication by the SEC that ~~are subject to stockholder approval at~~any violation of law has occurred, nor as a ~~special stockholders' meeting to be held on~~reflection upon any person, entity or ~~before February 20, 2023.~~security. The Company has been cooperating fully with the terms of the subpoena.

On March 1, 2023, the U.S. Department of Justice (the “DOJ”) announced charges and the SEC filed a civil complaint against Terren S. Peizer, our former Chief Executive Officer and Chairman of our Board of Directors, alleging unlawful insider trading in the Company’s stock. Neither the Company nor any other current or former director or employee of the Company were charged by the DOJ or sued by the SEC. The Company cannot predict the ultimate outcome of the DOJ or SEC proceedings, nor can we predict whether any other governmental authorities will initiate separate investigations or litigation. Investigations and any related legal and administrative proceedings could include a wide variety of outcomes, including the institution of administrative, civil injunctive or criminal proceedings involving the Company and/or its current or former executives and/or directors, the imposition of fines and other penalties, remedies and/or sanctions.

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 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, 2021 filed with the Securities and Exchange Commission.

FORWARD-LOOKING STATEMENTS

~~This~~

Investors are cautioned that all statements in this report ~~contains “forward-looking statements” within~~that relate to the ~~meaning of~~future involve risks and uncertainties. These statements, which are forward-looking statements under the Private Securities Litigation Reform Act of 1995, provide investors with ~~respect~~the Company’s expectations or forecasts of future events. You can identify these statements by the fact that they do not relate only to ~~the financial condition, results of operations, business strategies, operating efficiencies~~historical or ~~synergies, competitive positions, growth opportunities for existing products, plans and objectives of management, markets for our stock~~current facts. They may use words such as “anticipate,” “may,” “expect,” “should,” “believe,” “project,” “intend,” “will,” and other ~~matters. Statements~~words of similar meaning in ~~this report~~connection with future events or future operating or financial performance. The Company’s expectations and forecasts are subject to various risks and uncertainties and are based on assumptions that the Company believes in good faith 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-lookingreasonable but which may be materially different from actual results. Forward-looking statements, including, without limitation, those relating to the Company’s future business prospects, ~~our revenue and income, wherever they occur,~~results of operation, are necessarily estimates reflecting the best judgment of ~~our~~the Company’s senior management as of the date on which they were made, or if no date is stated, as of the date of the filing of this report. ~~These forward-looking~~Forward-looking statements are subject to a variety of risks, uncertainties and assumptions, including those described in ~~the “Risk Factors” in~~ Item 1A of Part II of this ~~Quarterly Report on Form 10-Q,~~report, Item 1A of Part I of ~~our most recent~~the Company’s Annual Report on Form 10-K ~~(“Form 10-K”)~~ for the fiscal year ended December 31, ~~2021~~2022 (the “2022 10-K”) and other reports ~~we filed~~the Company files 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~~such risks and uncertainties 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~~investors should not place undue reliance on any ~~such~~ forward-looking statements. New ~~factors~~risks and uncertainties emerge from time to time, and it is not possible for us to predict which ~~factors~~risks and uncertainties will ~~arise.~~arise or materialize. In addition, we cannot assess the impact of each ~~factor~~risk and uncertainty on our business or the extent to which any ~~factor,~~risk or uncertainty, or combination of ~~factors,~~risks and uncertainties, 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~~any forward-looking statements, except as required by law. Any or all forward-looking statements in this report may turn out to be wrong.

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

Ontrak, Inc. ~~(“Ontrak,” “Company,” “we,” “us” or “our”)~~ is an ~~AI-powered~~artificial intelligence (“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. Our technology-enabled platform provides ~~claim based~~claim-based analytics and predictive modeling to provide analytic insights throughout the delivery of our personalized treatment program. Our program predicts people whose chronic disease will improve with behavior change, recommends effective care pathways that people are willing to follow, and engages and guides them to and through the care they need. By combining predictive analytics with human engagement, we deliver improved member health and validated outcomes and savings to healthcare payors.

Our integrated, technology-enabled OntrakTM programs 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 domay 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. Our programs seek to improve member health and deliver validated cost savings to healthcare payors.

~~We operate~~Our business operates as one segment in the United States and we have contracted with leading national and regional health plans to make the Ontrak program available to eligible members.

Recent Developments

Management Changes

On March 2, 2023, Terren S. Peizer resigned as a member of the Board of Directors, as Chairman of the Board, as Executive Chairman, and as Chief Executive Officer of the Company, effective immediately. Mr. Peizer explained that his resignation was for the good of the Company and to minimize any distraction from the important work that the Company does.

Effective March 3, 2023, the Company’s Board of Directors appointed Brandon H. LaVerne as Interim Chief Executive Officer of the Company. Mr. LaVerne served as the Company’s Co-President and Chief Operating Officer since June 27, 2022 and continues to serve as Chief Operating Officer, but no longer serves as Co-President.

As a result of the changes in Mr. LaVerne’s roles with the Company, Mary Louise Osborne serves as the Company’s President and Chief Commercial Officer. Ms. Osborne served as the Company’s Co-President and Chief Commercial Officer since June 27, 2022 and August 2021, respectively.

Legal Proceedings

On March 1, 2023, the U.S. Department of Justice (the “DOJ”) announced charges and the SEC filed a civil complaint against Mr. Peizer alleging unlawful insider trading in the Company’s stock. Neither the Company nor any other current or former director or employee of the Company were charged by the DOJ or sued by the SEC.

Reduction in Workforce

In ~~August 2022, our management approved a restructuring plan~~March 2023, as part of ~~management's~~our continued cost saving measures ~~in order~~and to reduce ~~its~~our operating costs ~~optimize its business model~~ and to help align with ~~its~~our previously stated strategic ~~initiatives. Under the restructuring plan,~~initiatives, we ~~reduced~~implemented additional headcount reductions wherein approximately ~~34%~~19% of our employee positions ~~and $7.7~~were eliminated. These headcount reductions are expected to result in a reduction of approximately $2.7 million of annual compensation ~~costs, as well as approximately $3.0 million of annual third party~~ costs. During the three months ended ~~September 30, 2022,~~March 31, 2023, we incurred a total of approximately ~~$0.9~~$0.5 million of termination ~~benefits to the impacted employees,~~related costs, including severance payments and benefits payable to the impacted employees, recorded as part of "Restructuring, severance and related costs" on our condensed consolidated statement of operations for the three ~~and nine~~ months ended ~~September 30, 2022.~~ March 31, 2023.

For more information ~~See~~regarding restructuring, severance and related costs for the three months ended March 31, 2023, see Note 6 of the Notes to Condensed Consolidated Financial Statements included in ~~Item I,~~ Part I, Item 1 of this ~~Quarterly Report on Form 10-Q.~~report.

Keep Well Agreement

On April 15, 2022, we entered into a Master Note Purchase Agreement with Acuitas Capital, LLC ("Acuitas"), an entity indirectly wholly owned and controlled by ~~Terren S.~~Mr. Peizer ~~the Company's Executive Chairman and largest stockholder, and on November 19, 2022, we and Acuitas entered into an amendment to that agreement~~ (the ~~“Second Amendment,” and the~~ Master Note Purchase Agreement as amended to date, the “Keep Well Agreement”). In connection with each borrowing under the Keep Well Agreement, we are required to issue a senior secured note for the amount borrowed ~~(each such note a "Keep Well Note")~~ to Acuitas or an entity affiliated with it, which accrues interest based on a variable rate based on the 30 day tenor Secured Overnight Financing Rate plus a corresponding applicable margin (the "adjusted term SOFR") and are due on June 30, 2024, subject to acceleration for customary events of default, including for failure to make payments when due, breaches by us of certain covenants and representations in the Keep Well Agreement, defaults by us under other agreements related to indebtedness, our bankruptcy or dissolution, and a change of control.

During the three months ended September 30, 2022, we borrowed a total of $11.0 million under the Keep Well Agreement, and applied a portion of the proceeds therefrom to pay off in full all outstanding amounts we owed under the 2024 Notes, discussed below, and to fund our working capital requirements. Each borrowing was completed with the issuance of a Keep Well Note, which accrues interest based on the adjusted term SOFR for each interest period. At September 30, 2022, the effective weighted average interest rate for the Keep Well Notes was 18.25%. At September 30, 2022, the amount available to be borrowed under the Keep Well Agreement was approximately $10.7 million, which reflects the reduction in the total amount available to be borrowed resulting from the $3.3 million of net proceeds we raised in the equity offering discussed below. Pursuant to the Second Amendment, the $3.3 million reduction was reversed, such that amount available to be borrowed was increased to $14.0 million, and which will be borrowed as follows: $4.0 million in each of January, March and June 2023 and $2.0 million in September 2023.

In accordance with the terms of the Keep Well Agreement, ~~following~~on February 20, 2023, a special meeting of stockholders was held during which the ~~approval~~Company’s stockholders approved the issuance of shares of the ~~stockholders at~~Company's common stock, convertible notes and the ~~annual stockholder meeting held~~shares of the Company's common stock issuable upon conversion thereof, and warrants to purchase shares of the Company's common stock and the shares of our common stock issuable upon exercise thereof, in each case, pursuant to the Keep Well Agreement. As a result, on ~~August 29, 2022, (a) on September 2, 2022, we~~February 22, 2023:

•the Company issued ~~739,645~~2,038,133 shares of its common stock ~~(the “Commitment Shares”)~~to Acuitas;

•warrants to purchase 1,775,148 shares of the Company’s common stock previously issued by the Company to Acuitas pursuant to the Keep Well Agreement through February 20, 2023 were exchanged for warrants to purchase 33,333,333 shares of the Company’s common stock; and

•senior secured notes previously issued by the Company to Acuitas evidencing the $15.0 million in principal amount borrowed under the Keep Well Agreement through February 20, 2023 were exchanged for senior secured notes with the

Conversion Rights (as defined in Note 10 of the Notes to Condensed Consolidated Financial Statements in Part I, Item 1 of this report).

On each of January 5, 2023 and ~~(b) as of September 30, 2022, we have~~March 6, 2023, the Company borrowed $4 million under the Keep Well Agreement. In connection with each such borrowing, the Company issued to Acuitas ~~Keep Well Warrants~~a warrant to purchase ~~1,301,775~~ shares of ~~our~~the Company’s common stock ~~(the "Keep Well Warrants"). The Keep Well Warrants have~~– a ~~term~~warrant to purchase 473,373 shares of the Company's common stock and a warrant to purchase 8,888,889 shares of the Company's common stock in connection the January 5, 2023 and March 6, 2023 borrowing, respectively. Each warrant has a five ~~years~~year term and an exercise price equal to $1.69, which was the closing price of our common stock as reported on Nasdaq immediately preceding the time the parties entered into the Keep Well Agreement. The exercise price of the Keep Well Warrants is subject to reduction in accordance with the terms of the Second Amendment.$0.45 per share.

For additional information regarding the Keep Well Agreement and the ~~Second Amendment,~~transactions related thereto, please see the discussion under “Keep Well Agreement” in Note 10 ~~and Note 14, respectively,~~ of the Notes to Condensed Consolidated Financial Statements in Part I, Item 1 ~~Part I~~ of this ~~Quarterly Report on Form 10-Q.~~

~~2024 Note Agreement~~

On March 8, 2022, we entered into an Eight Amendment to Note Purchase Agreement with the Holders (the "Eighth Amendment"), which among other things, amended certain financial covenants intended to increase the Company's financial flexibility, a required prepayment of $11.0 million of the outstanding loan balance without the incurrence of a yield maintenance premium or prepayment fee, which prepayment was made by the Company on March 8, 2022, restrictions on the declaration and payment of dividends on our Series A Preferred Stock until after December 31, 2022, and elimination of LIBOR as a reference rate such that the 2024 Notes only bear interest at the Base Rate, as defined in the Note Agreement, going forward. During the

first half of 2022, the Company prepaid a total of $31.7 million (including the above mentioned $11.0 million) of the 2024 Notes, and wrote off $2.0 million of debt issuance costs related to the 2024 Notes.

On July 15, 2022, we entered into a payoff letter agreement with the Holders of our 2024 Notes, pursuant to which we paid in full the outstanding loan balance under the 2024 Notes of approximately $7.6 million, which included $0.1 million of accrued interest as of July 15, 2022. We funded the payoff with $2.6 million of its cash on hand and $5 million of borrowing under the Keep Well Agreement, as discussed above. All obligations owing by us and the other Note Parties (as defined in the Note Purchase Agreement), including restrictions described above, under the Note Purchase Agreement were released, discharged and satisfied in full, the Note Purchase Agreement and all other Note Documents (as defined in the Note Agreement) were terminated (other than those provisions therein that expressly survive termination), and all liens securing our obligations under the Note Agreement were released. During the three months ended September 30, 2022, we wrote off the remaining $1.3 million of debt issuance costs related to the 2024 Notes.

In connection with entering into the Eighth Amendment, we issued to Special Situations Investing Group II, LLC (the “Holder”), a Purchase Warrant for Common Shares (the “Amendment Warrant”) pursuant to which the Holder may purchase shares of our common stock in an aggregate amount of up 111,680 shares. Also, we agreed to issue to the Holder, beginning March 31, 2022 and until the earlier of (i) date the 2024 Notes have been paid in full and (ii) October 31, 2022, additional warrants (each a “Ticking Warrant” and together with the Amendment Warrant, the “Warrants”), having the same terms as the Amendment Warrant, to purchase a number of shares of our common stock equal to $47,500, to be calculated based on the volume weighted average trading price of our common stock during the five (5) trading day period immediately preceding the date such Ticking Warrant is issued, not to exceed 7% of the outstanding shares of our common stock on the date of the Eighth Amendment. The Warrants were offered and sold to the Holder in a private placement exempt from registration under the Securities Act. The Warrants may be exercised by the Holder at an exercise price equal to $0.01 per share and will expire on September 24, 2026. As of September 30, 2022, Ticking Warrants to purchase 118,931 shares of our common stock were issued to the Holder. We assessed and separated the Warrants into liability and equity components, wherein the Amendment Warrant qualified for equity classification and the Ticking Warrants qualified for liability classification.

~~Equity Offering~~

On August 2, 2022, we entered into a securities purchase agreement with certain institutional investors for the purchase and sale of 5,000,000 shares of our common stock at an at-the-market purchase price of $0.80 per share in a registered direct offering. The offering closed on August 4, 2022 and we received total net proceeds of approximately $3.3 million (excluding approximately $0.7 million of fees and expenses). We used the net proceeds from the offering for working capital purposes.report.

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 and achievement of certain member specified metrics that drive clinical engagement. Our performance obligation is satisfied over the length of the Ontrak program as our services our 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 the growth of our operations.

•Effective ~~Outreach Pool.~~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,									Three Months Ended March 31,
(In thousands, except outreach pool and percentages)	(In thousands, except outreach pool and percentages)	2022		2021		Change $		Change %		(In thousands, except outreach pool and percentages)	2023		2022		Change $		Change %
Revenue	Revenue	$	2,843	$	18,594	$	(15,751)	(85)	%	Revenue	$	2,529	$	5,258	$	(2,729)	(52)	%
Cash flow from operations	Cash flow from operations	(8,305)		(14,265)		5,960		(42)		Cash flow from operations	(4,953)		(10,491)		5,538		(53)

		Nine Months Ended September 30,
		2022		2021		Change $		Change %
Revenue		$	12,004	$	73,801	$	(61,797)	(84)	%
Cash flow from operations		(22,520)		(11,111)		(11,409)		103

At September 30,
2022 2021 Change Change %
Effective Outreach Pool 4,163 14,165 (10,002) (71) %


	At March 31,
	2023	2022	Change	Change %
Effective outreach pool	8,865	3,950	4,915	124	%

Our revenue for the three months ended ~~September 30, 2022~~March 31, 2023 was ~~$2.8~~$2.5 million compared to ~~$18.6~~$5.3 million for the same period in ~~2021, and $12.0 million for the nine months ended September 30, 2022 compared to $73.8 million for the same period in 2021.~~2022. The decrease in our revenue in the three ~~and nine~~ months ended ~~September 30, 2022~~March 31, 2023 compared to the same period in ~~2021~~2022 was primarily due to ~~the loss of two of our largest customers as previously announced in 2021 and~~ a decrease in total average enrolled members during the three ~~and nine~~ months ended ~~September 30, 2022~~March 31, 2023 compared to the same ~~periods~~period in ~~2021.~~2022.

Our cash flow from operations for the three months ended ~~September 30, 2022~~March 31, 2023 was ~~$(8.3)~~$(5.0) million compared to ~~$(14.3)~~$(10.5) million for the same period in ~~2021, and $(22.5) million for nine months ended September 30, 2022 compared to $(11.1) million for the same period in 2021.~~2022. The ~~year over year decrease~~year-over-year improvement in our cash flow from operations during the three ~~and nine~~ months ended ~~September 30, 2022~~March 31, 2023 as compared to the ~~same periods in 2021~~three ended March 31, 2022 was primarily due to a decrease in ~~our revenue related to the customer terminations previously announced.~~net loss which resulted primarily from an improvement in operating expenses resulting from strategic headcount reductions throughout 2022 and 2023.

Our effective outreach pool at ~~September 30, 2022~~March 31, 2023 was ~~4,163~~8,865 compared to ~~14,165 for the same period~~3,950 at March 31, 2022. The increase in ~~2021. The decrease was primarily due to 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~~was due to ~~fluctuate in~~several factors including the ~~near term.~~refinement of our proprietary and predictive algorithms to identify additional eligible members, the addition of high-acuity, commercial members resulting from an amendment executed with an

existing customer and the expansion of the Ontrak program for a Medicaid plan customer to a new 18 to 20 year old cohort of members with impactable cost threshold.

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, as well as restructuring, severance and related costs as applicable. 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. Restructuring, severance and related costs include workforce reduction costs and asset impairment charges, if any.

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 Expense, net

Other ~~income (expense)~~expense, net consists of gains ~~(losses)~~and losses associated with changes in fair value of warrant liabilities and contingent consideration, ~~and warrant liabilities,~~ write-off of debt issuance related costs and other assets, and other miscellaneous income ~~(expense)~~and 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):

Three Months Ended
September 30, Nine Months Ended
September 30,
2022 2021 2022 2021
Revenue $ 2,843 $ 18,594 $ 12,004 $ 73,801
Cost of revenue 1,436 5,856 6,488 27,125
Gross profit 1,407 12,738 5,516 46,676
Operating expenses:
Research and development 2,833 4,563 9,113 13,531
Sales and marketing 1,151 2,269 3,893 7,839
General and administrative 7,552 11,325 27,694 33,966
Restructuring, severance and related costs 934 49 934 1,339
Total operating expenses 12,470 18,206 41,634 56,675
Operating loss (11,063) (5,468) (36,118) (9,999)
Other expense, net (1,241) (361) (3,213) (1,004)
Interest expense, net (440) (2,054) (2,996) (6,090)
Loss before income taxes (12,744) (7,883) (42,327) (17,093)
Income tax expense (20) — (140) —
Net loss $ (12,764) $ (7,883) $ (42,467) $ (17,093)


	Three Months Ended March 31,
		2023		2022
Revenue		$	2,529	$	5,258
Cost of revenue		847		2,846
Gross profit		1,682		2,412

Operating expenses:
Research and development		1,644		3,428
Sales and marketing		990		1,436
General and administrative		5,818		10,693
Restructuring, severance and related costs		457		—
Total operating expenses		8,909		15,557
Operating loss		(7,227)		(13,145)

Other income, net		291		—
Interest expense, net		(1,394)		(1,400)
Loss before income taxes		(8,330)		(14,545)
Income tax expense		(20)		(100)
Net loss		$	(8,350)	$	(14,645)

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,												Three Months Ended March 31,
(In thousands, except percentages)	(In thousands, except percentages)	2022			2021			Change			Change %		2022			2021			Change			Change %		(In thousands, except percentages)		2023			2022			Change			Change %
Commercial revenue	Commercial revenue	$	1,267		$	7,093		$	(5,826)		(82)	%	$	5,624		$	28,902		$	(23,278)		(81)	%	Commercial revenue		$	883		$	2,452		$	(1,569)		(64)	%
Percentage of commercial revenue to total revenue	Percentage of commercial revenue to total revenue	45		%	38		%	7		%			47		%	39		%	8		%			Percentage of commercial revenue to total revenue		35		%	47		%	(12)		%
Government revenue	Government revenue	$	1,576		$	11,501		$	(9,925)		(86)	%	$	6,380		$	44,899		$	(38,519)		(86)	%	Government revenue		$	1,646		$	2,806		$	(1,160)		(41)	%
Percentage of government revenue to total revenue	Percentage of government revenue to total revenue	55		%	62		%	(7)		%			53		%	61		%	(8)		%			Percentage of government revenue to total revenue		65		%	53		%	12		%
Total revenue	Total revenue	$	2,843		$	18,594		$	(15,751)		(85)	%	$	12,004		$	73,801		$	(61,797)		(84)	%	Total revenue		$	2,529		$	5,258		$	(2,729)		(52)	%

Total revenue decreased ~~$15.8~~$2.7 million, or ~~85%,~~52% in the three months ended ~~September 30, 2022~~March 31, 2023 compared to the same period of ~~2021, and decreased by $61.8 million, or 84%, in the nine months ended September 30, 2022 compared to the same period of 2021. The~~2022. Such decrease ~~in revenue during the three and nine months ended September 30, 2022 compared to the respective periods in 2021~~ was primarily ~~attributable~~due to ~~the loss of our two largest customers as previously announced and~~ a decrease in total average enrolled ~~members.~~members during the three months ended March 31, 2023 compared to the same period in 2022.

The ~~mix~~percentage of our revenues from commercial customers ~~increased~~decreased to ~~45% and 47% in~~35% for the three ~~and nine~~ months ended ~~September 30, 2022, respectively,~~March 31, 2023 compared to ~~38% and 39% in~~47% for the three ~~and nine~~ months ended ~~September 30, 2021, respectively.~~March 31, 2022. The ~~mix~~percentage of our revenues from government customers ~~decreased~~increased to ~~55% and 53% in~~65% for the three ~~and nine~~ months ended ~~September 30, 2022, respectively,~~March 31, 2023 compared to ~~62% and 61% in~~53% for the three ~~and nine~~ months ended ~~September 30, 2021, respectively.~~March 31, 2022. This shift in mix of revenues from commercial and government customers was mainly due to a larger decrease in commercial revenues compared to the ~~loss of our two largest customers as previously announced.~~decrease in government revenues during the three months ended March 31, 2023 compared to the same period in 2022,

We currently expect our revenues in the remainder of 2022 to decline year over year primarily as a result of the lost customers as previously announced and pricing and volume updates with certain other customers.

Cost of Revenue, Gross Profit and Gross Profit Margin

Three Months Ended
September 30, Nine Months Ended
September 30,
(In thousands, except percentages) 2022 2021 Change Change % 2022 2021 Change Change %
Cost of revenue $ 1,436 $ 5,856 $ (4,420) (75) % $ 6,488 $ 27,125 $ (20,637) (76) %
Gross profit 1,407 12,738 (11,331) (89) 5,516 46,676 (41,160) (88)
Gross profit margin 49 % 69 % (20) % 46 % 63 % (17) %


	Three Months Ended March 31,
(In thousands, except percentages)		2023			2022			Change			Change %
Cost of revenue		$	847		$	2,846		$	(1,999)		(70)	%
Gross profit		1,682			2,412			(730)			(30)
Gross profit margin		67		%	46		%	21		%

Cost of revenue decreased ~~$4.4~~$2.0 million, or ~~75%,~~70% in the three months ended ~~September 30, 2022~~March 31, 2023 compared to the same period of ~~2021. The~~2022. Such decrease ~~in cost of revenue during the three months ended September 30, 2022~~ was primarily due to ~~a decrease in personnel costs resulting from~~the effect of lower headcount ~~efficiencies gained~~ and cost optimization initiatives we implemented throughout 2022 as we strategically sought to improve the operations ~~for~~of our member facing organization, ~~and~~as well as a decrease in provider costs.

Gross profit decreased by $0.7 million and gross profit margin ~~decreased~~increased by ~~$11.3 million and 20%, respectively,~~21% in the three months ended ~~September 30, 2022~~March 31, 2023 compared to the same period of ~~2021.~~2022. The decrease in ~~both~~ gross profit ~~and gross profit margin in the three months ended September 30, 2022~~ was primarily due to the decrease in ~~our~~ revenue discussed above.

~~Cost of revenue decreased $20.6 million, or 76%,~~ The increase in ~~the nine months ended September 30, 2022 compared to the same period of 2021. The decrease in cost of revenue during the nine months ended September 30, 2022~~gross profit margin was primarily due to ~~a decrease in personnel costs resulting from~~the effect of lower headcount ~~efficiencies gained~~ and cost optimization initiatives we implemented throughout 2022 as we strategically sought to improve the operations ~~for~~of our member facing organization, ~~and~~as well as a decrease in provider costs.

Gross profit and gross profit margin decreased by $41.2 million and 17%, respectively, in the nine months ended September 30, 2022 compared to the same period of 2021. The decrease in both gross profit and gross profit margin in the nine months ended September 30, 2022 was primarily due to the decrease in our revenue discussed above.

~~We expect our cost of revenue to decline year over year in line with the decrease in revenue as discussed above and as well as pricing updates to our customers.~~

Operating Expenses


		Three Months Ended September 30,											Nine Months Ended September 30,												Three Months Ended March 31,
(In thousands, except percentages)	(In thousands, except percentages)	2022			2021			Change			Change %		2022			2021			Change			Change %		(In thousands, except percentages)		2023		2022		Change		Change %
Operating expenses:	Operating expenses:																							Operating expenses:
Research and development	Research and development	$	2,833		$	4,563		$	(1,730)		(38)	%	$	9,113		$	13,531		$	(4,418)		(33)	%	Research and development		$	1,644	$	3,428	$	(1,784)	(52)	%
Sales and marketing	Sales and marketing	1,151			2,269			(1,118)			(49)		3,893			7,839			(3,946)			(50)		Sales and marketing		990		1,436		(446)		(31)
General and administrative	General and administrative	7,552			11,325			(3,773)			(33)		27,694			33,966			(6,272)			(18)		General and administrative		5,818		10,693		(4,875)		(46)
Restructuring, severance and related costs	Restructuring, severance and related costs	934			49			885			1806		934			1,339			(405)			(30)		Restructuring, severance and related costs		457		—		457		N/M (1)
Total operating expenses	Total operating expenses	$	12,470		$	18,206		$	(5,736)		(32)		$	41,634		$	56,675		$	(15,041)		(27)		Total operating expenses		$	8,909	$	15,557	$	(6,648)	(43)

Operating loss	Operating loss	$	(11,063)		$	(5,468)		$	(5,595)		102	%	$	(36,118)		$	(9,999)		$	(26,119)		261	%	Operating loss		$	(7,227)	$	(13,145)	$	5,918	(45)	%
Operating loss margin		(389)		%	(29)		%	(360)		%			(301)		%	(14)		%	(287)		%

__________

(1) Not meaningful.

Total operating expense decreased by ~~$5.7~~$6.6 million, or ~~32%~~43%, in the three months ended ~~September 30, 2022~~March 31, 2023 compared to the same period in ~~2021.~~2022. The decrease in operating expenses was primarily due ~~to the following:~~to:

•~~$1.7~~a $1.8 million decrease in our research and development costs, which was primarily related to ~~$2.0~~a $0.9 million decrease in employee-related costs, ~~and $0.5~~a $0.4 million decrease in depreciation expense, a $0.3 million decrease in professional ~~consulting fees, partially offset by a $0.5 million increase in depreciation expense~~service costs and a ~~$0.3~~$0.2 million ~~increase~~decrease in software ~~costs.~~related fees;

•~~$1.1~~a $0.4 million decrease in our sales and marketing costs, which was primarily related to ~~$0.6 million decrease in promotional costs related to marketing initiatives,~~ $0.4 million decrease in ~~employee-related costs~~employee related cost in our sales and ~~$0.1 million decrease in professional service costs.~~marketing department;

•~~$3.8~~a $4.9 million decrease in our general and administrative costs, which was primarily related to ~~$3.1~~$4.0 million decrease in employee-related costs, a ~~$0.4 million decrease in software related costs and a $0.2 million decreases in occupancy costs, partially offset by a $0.3 million increase in legal and related professional service costs.~~

•$0.9 million increase in restructuring, severance and related costs related to the reduction in workforce announced in August 2022 contributed to a partial offset to the total net decrease in operating expenses.

Total operating expense decreased by $15.0 million, or 27%, in the nine months ended September 30, 2022 compared to the same period in 2021. The decrease in operating expenses was primarily due to the following:

•$4.4 million decrease in our research and development costs, which was primarily related to $5.4 million decrease in employee-related costs and $1.0 million decrease in professional consulting fees, partially offset by a $1.6 million increase in depreciation expense and a $0.5 ~~million increase in software costs.~~

•~~$3.9 million decrease in our sales and marketing costs, which was primarily related to $2.8 million decrease in promotional costs related to marketing initiatives, $0.6~~ million decrease in professional service costs, ~~and $0.6 million decrease in employee-related costs.~~

•$6.3 million decrease in our general and administrative costs, which was primarily related to $5.2 million decrease in employee-related costs, a $1.0 million decrease in software related costs, a $0.5 million decreases in other general professional service costs and a $0.4 million decrease in insurance related costs, a $0.2 million decrease in software costs, a $0.2 million decrease in travel and entertainment costs, and a $0.1 million decrease in occupancy related costs, partially offset by a ~~$1.0~~$0.7 million increase in legal ~~costs.~~

•~~$0.4 million decrease in restructuring, severance~~costs; and related costs related to the reduction in workforce announced in August 2022 compared to the reduction in workforce costs incurred in the nine months ended September 30, 2021 relating to the reduction in workforce announced in March 2021.

3534

~~Our operating expenses may fluctuate as~~ •a ~~percentage of~~$0.5 million increase in our ~~total revenue from period to period~~restructuring, severance and related costs due to the ~~timing and extent~~workforce reduction implemented in March 2023. For more information, see Note 6 of ~~our operating and strategic initiatives.~~the Notes to the Condensed Consolidated Financial Statements included in Part I, Item 1 of this report.

Other ~~Expense,~~Income, net


		Three Months Ended September 30,								Nine Months Ended September 30,									Three Months Ended March 31,
(In thousands, except percentages)	(In thousands, except percentages)	2022		2021		Change $		Change %		2022		2021		Change $		Change %		(In thousands, except percentages)		2023		2022		Change $		Change %
Other expense, net		$	(1,241)	$	(361)	$	(880)	(244)	%	$	(3,213)	$	(1,004)	$	(2,209)	(220)	%
Other income, net																		Other income, net		$	291	$	—	$	291	100	%

Other ~~expense,~~income, net ~~of $1.2 million~~ for the three months ended ~~September 30, 2022 was primarily~~March 31, 2023 consisted of a $0.5 million gain related to the write-off of ~~debt issuance costs on our 2024 Notes. Other expense, net~~an operating lease asset and liability upon early termination of ~~$0.4 million~~the lease for ~~the three months ended September 30, 2021 was related to $0.5 million loss related to a change~~office space in ~~the fair value of contingent consideration liability,~~Santa Monica, California, partially offset by ~~a $0.1~~approximately $0.2 million of ~~other income.~~

~~Other expense,~~ net ~~for the nine months ended September 30, 2021 was $3.2 million, which was~~lease termination related to $3.3 million of write-off of debt issuance costs on our 2024 Notes, partially offset by $0.1 million of gain related to a change in the fair value of warrant liabilities. Other expense, net for the nine months ended September 30, 2021 was $1.0 million, which was related to $1.3 million loss related to a change in the fair value of contingent consideration liability, partially offset by a $0.2 million gain related to a PPP loan that was forgiven and $0.1 million of other income.fees.

Interest Expense, net


		Three Months Ended September 30,							Nine Months Ended September 30,									Three Months Ended March 31,
(In thousands, except percentages)	(In thousands, except percentages)	2022	2021		Change $		Change %		2022		2021		Change $		Change %		(In thousands, except percentages)		2023		2022		Change $		Change %
Interest expense, net	Interest expense, net	$(440)	$	(2,054)	$	1,614	79	%	$	(2,996)	$	(6,090)	$	3,094	51	%	Interest expense, net		$	(1,394)	$	(1,400)	$	6	0	%

The decrease in interest expense, net for the three ~~and nine~~ months ended ~~September 30, 2022~~March 31, 2023 compared to the same ~~periods~~period in ~~2021~~2022 was primarily due to lower average total outstanding loan balance during the three ~~and nine~~ months ended ~~September 30,~~March 31, 2023, largely offset by higher amount of accretion of debt discount to interest expense as well as higher weighted average interest rate for the three months ended March 31, 2023 compared to the same period in 2022.

Income Tax Expense


		Three Months Ended September 30,							Nine Months Ended September 30,									Three Months Ended March 31,
(In thousands, except percentages)	(In thousands, except percentages)	2022	2021		Change $		Change %		2022		2021		Change $		Change %		(In thousands, except percentages)		2023		2022		Change $		Change %
Income tax expense	Income tax expense	$(20)	$	—	$	(20)	100	%	$	(140)	$	—	$	(140)	100	%	Income tax expense		$	(20)	$	(100)	$	80	80	%

Income tax expense ~~for the three and nine months ended September 30, 2022 was~~of $0.02 million and $0.1 million for the three months ended March 31, 2023 and 2022, respectively, ~~which were~~was primarily related to state income taxes. ~~There was no income tax expense for the three and nine months ended September 30, 2021.~~

LIQUIDITY AND CAPITAL RESOURCES

~~Our ability~~

We generate revenues from the services we provide to ~~fund ongoing operations is dependent on several factors.~~commercial (employer funded), managed Medicare Advantage, managed Medicaid and dual eligible (Medicare and Medicaid) populations. We also generate revenues from the mental health and wellbeing support services we provide to members of employer customers under our LifeDojo wellbeing solution. We aim to increase the number of members that are eligible for our solutions by signing new contracts and identifying more eligible members inwithin customers with whom we have existing contracts. Additionally, our funding is dependent upon the success of management’s plan to increase revenue and control expenses. We provide services to commercial (employer funded), managed Medicare Advantage, managed Medicaid and duel eligible (Medicare and Medicaid) populations. We also provide mental health and wellbeing support to members of employer customers under our LifeDojo wellbeing solution.

We have incurred significant net losses and negative operating cash flows since our inception, and we expect to continue to incur net losses and negative operating cash flow, in part due to the negative impact on our operations by customer terminations. As of ~~September 30, 2022,~~March 31, 2023, our cash and restricted cash was ~~$11.9~~$12.1 million and we had working capital of approximately ~~$11.5~~$7.2 million. For the ~~nine~~three months ended ~~September 30, 2022,~~March 31, 2023, our average monthly cash flow from operations burn rate was ~~$2.5~~$1.7 million. ~~Based on~~Throughout 2022 and in March 2023, as part of our ~~cash and restricted cash levels, expected revenue from business operations, and after taking into account the amount available~~continued cost saving measures to ~~borrow under the Keep Well Agreement, we expect to have sufficient cash to cover~~reduce our operating ~~expenses through at least~~costs and to better align with our

previously stated strategic initiatives, we implemented a number of reduction in workforce and vendor cost optimization plans. We expect the ~~next twelve months following~~full effect of these plans to be realized during the ~~date~~remainder of 2023 and beyond, including a decrease in our ~~financial statements~~operating costs and an improvement in ~~this report are issued. As of the date of this Quarterly Report on Form 10-Q, we had $14 million of available borrowing capacity under the Keep Well Agreement. See Note 10 and Note 14 of the Notes~~our average monthly cash flow from operations. The cost optimization plans were necessary to Condensed Consolidated Financial Statements in Part I, Item 1 of this Quarterly Report on Form 10-Q for more information about the Keep Well Agreement. However, delays in cash collections, lower revenue than anticipated, unforeseen expenditures, orright size our ~~inability to satisfy the conditions precedent to borrowing funds under the Keep Well Agreement could impact~~business commensurate with our ~~expectation.~~current customer base.

In addition to revenue from business operations, our primary source of working capital is borrowings under the ~~amount available~~Keep Well Agreement. As of March 31, 2023, $6.0 million remained to be borrowed under the Keep Well Agreement. We may also be able to raise capital through equity ~~financing,~~financings, however, when we can ~~effect~~affect such ~~sales~~financings and ~~the amount of shares~~how much capital we can ~~sell~~raise depends on a variety of factors, ~~to be determined by us from time to time,~~ including, among others, market conditions, the trading price of our common stock and our determination as to the appropriate sources of funding for our operations.

There can be no assurance that we will be able to satisfy the conditions precedent to future borrowings under the Keep Well Agreement or that other capital will be available when needed or that, if available, it will be obtained on terms favorable to us and our stockholders, that we will be successful in implementing cost optimization initiatives, or that we will be successful in executing our growth strategy. In addition, ~~our~~the Keep Well Agreement contains various financial and other covenants, and any ~~unanticipated~~ non-compliance with those covenants could prevent us from borrowing additional amounts under the Keep Well Agreement and/or result in an acceleration of the repayment of the amounts outstanding loan balance, and our ability to borrow funds under the Keep Well Agreement is subject to conditions precedent being satisfied, and we may not satisfy such conditions precedent if and when we need to borrow funds thereunder. Furthermore, equity or debt financings may have a dilutive effect on the holdings of our existing stockholders, and debt financings may subject us to restrictive covenants, operational restrictions and security interests in our assets. See the risk factors entitled, “We expect to continue to incur substantial operating losses and may be unable to obtain additional financing,” and “We will need additional funding, and we cannot guarantee that we will satisfy the conditions precedent for the $6.0 million that remains to be borrowed under the Keep Well Agreement or find adequate sources of capital in the future,” in Item 1A. Risk Factors, Part II of the 2022 10-K.

Cash Flows

The following table sets forth a summary of our cash flows for the periods indicated (in thousands):

Nine Months Ended
September 30,
2022 2021
Net cash used in provided by operating activities $ (22,520) $ (11,111)
Net cash used in investing activities (1,004) (3,865)
Net cash used in financing activities (30,488) (3,467)
Net decrease in cash and restricted cash $ (54,012) $ (18,443)


	Three Months Ended March 31,
	2023		2022
Net cash used in operating activities	$	(4,953)	$	(10,491)
Net cash used in investing activities	(25)		(255)
Net cash provided by (used in) financing activities	7,339		(23,069)
Net increase (decrease) in cash and restricted cash	$	2,361	$	(33,815)

Net cash used in operating activities during the ~~nine~~three months ended ~~September 30, 2022~~March 31, 2023 was ~~$22.5~~$5.0 million compared with net cash ~~used in~~provided by operating activities of ~~$11.1~~$10.5 million during the same period in ~~2021.~~2022. The ~~$11.4 million increase~~year over year improvement in ~~net~~our cash ~~used in operating activities~~flow from operations during the ~~nine~~three months ended ~~September 30, 2022~~March 31, 2023 as compared to the ~~same period in 2021~~three ended March 31, 2022 was primarily due to a decrease in ~~our revenue related to the customer terminations previously announced~~net loss which resulted primarily from an improvement in operating expenses resulting from strategic headcount reductions throughout 2022 and ~~related decrease in customer billings and collections.~~2023.

Net cash used in investing activities was ~~$1.0~~$0.03 million for the ~~nine~~three months ended ~~September 30, 2022~~March 31, 2023 compared with ~~$3.9~~$0.3 million in the same period of ~~2021.~~2022. The ~~$1.0~~$0.03 million and ~~$3.9~~$0.3 million of net cash used in investing activities for the ~~nine~~three months ended ~~September 30,~~March 31, 2023 and 2022, ~~and 2021,~~ respectively, was primarily related to capitalized software development costs. We anticipate that software development costs and capital expenditures will decrease in the near future.

3736

Our net cash ~~used in~~provided by financing activities was ~~$30.5~~$7.3 million for the ~~nine~~three months ended ~~September 30, 2022~~March 31, 2023 compared with ~~$3.5 million for the nine months ended September 30, 2021. The $30.5 million of~~ net cash used in financing activities of $23.1 million for the ~~nine~~three months ended ~~September 30,~~March 31, 2022. The $7.3 million of net cash provided by financing activities for the three months ended March 31, 2023 was primarily related to $8.0 million of proceeds from borrowings under the Keep Well Agreement, partially offset by $0.6 million of financed insurance premium payments. Net cash used in financing activities of $23.1 million for the three months ended March 31, 2022 was primarily related to ~~$39.2~~$20.0 million of repayments made on our ~~2024 Notes, representing full payment and termination of the~~ 2024 Notes, $2.2 million of dividend payments made on our Series A Preferred Stock and ~~$2.3~~$0.8 million of ~~payments made on our~~ financed insurance premiums, partially offset by $11.0 million borrowed on the Keep Well Agreement and $3.3 million net raised in a registered direct offering of our common stock. 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.premium payments.

As a result of the above, our total cash and cash equivalents, including restricted cash of $4.7 million, was ~~$11.9~~$12.1 million as of ~~September 30, 2022.~~March 31, 2023.

Debt

See Note 10 of the Notes to Condensed Consolidated Financial Statements in Part I, Item 1 of this ~~Quarterly Report on Form 10-Q~~report for a detailed discussion about our debt.

~~Equity Offerings~~

~~See Note 7 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 equity offerings.~~

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 ~~our~~the ~~2021~~2022 Form 10-K, and “Critical Accounting Policy and Estimates” in Part II, Item 7 of ~~our 2021~~the 2022 Form 10-K for a discussion of the significant accounting policies 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 ~~2021~~2022 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, 2022.~~March 31, 2023. Based on this evaluation, our principal executive officer and our principal financial officer have concluded that, as of ~~September 30, 2022,~~March 31, 2023, 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, 2022~~March 31, 2023 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 the filing of this ~~Quarterly Report on Form 10-Q,~~report, 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 Contingencies~~

~~On March 3, 2021, a purported securities class action was filed~~legal proceedings discussed in Note 13, “Commitments and Contingencies” in the ~~United States District Court for the Central District~~Notes to Condensed Consolidated Financial Statements, in Part I, Item 1 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,this report, which is incorporated 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 has been taken under submission, with no oral argument. The Company believes that the allegations lack merit and intends 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. On December 1, 2021, a similar shareholder derivative action was filed in the United States District Court for the District of Delaware, entitled ~~Vega v. Peizer~~, Case No. 1:21-cv-01701, for violation of Section 20(a) of the Exchange Act, breach of fiduciary duty, unjust enrichment 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. 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 December 7, 2021, the Court in the Central District of California consolidated the two Central District of California actions under the ~~Aptor~~ ~~case caption and number (the "Consolidated Derivative~~

Action"), stayed the action pending a ruling on the Motion to Dismiss in the Consolidated Class Action and ordered plaintiffs to file a consolidated amended complaint within fourteen (14) days of a ruling on the Motion to Dismiss in the Consolidated Class Action. On February 7, 2022, the Court in the District of Delaware extended the deadline for defendants to respond to the complaint in the ~~Vega~~ action to April 8, 2022. On March 21, 2022 the Court in the District of Delaware granted plaintiff’s unopposed motion to transfer the case to the United States District Court for Central District of California in the interest of judicial efficiency due to the Consolidated Class Action and Consolidated Derivative Action already pending in that district, and that same day the case was transferred into the United States District Court for Central District of California and given the new Case No. 2:22-cv-01873-CAS-AS.On April 11, 2022, the Court stayed the action pending a ruling on the Motion to Dismiss in the Consolidated Class Action and ordered plaintiffs to inform defendants regarding their intention to amend their initial complaint within thirty (30) days of said ruling. Although all of the claims asserted in these actions 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 these actions are without merit and intend to defend themselves vigorously.

~~On February 28, 2022, a purported securities class action was filed in the Superior Court of California for Los Angeles County, entitled~~ ~~Braun v. Ontrak, Inc., et al~~., Case No. 22STCV07174. The plaintiff filed this action purportedly on behalf of a putative class of all purchasers of the 9.50% Series A Cumulative Perpetual Preferred Stock (the “Preferred stock”) of Ontrak pursuant to Registration Statements and Prospectuses issued in connection with Ontrak’s August 21, 2020 initial public stock offering, its September 2020 through December 2020 “at market” offering, and its December 16, 2020 follow-on stock offering (collectively, the “Offerings”). The plaintiff brings this action against the Company; its officers: Terren S. Peizer, Brandon H. LaVerne, and Christopher Shirley; its board members: Richard A. Berman, Sharon Gabrielson, Gustavo Giraldo, Katherine B. Quinn, Robert Rebak, Diane Seloff, Michael Sherman, and Edward Zecchini; and the investment banking firms that acted as underwriters for the Offerings: B. Riley Securities, Inc., Ladenburg Thalmann & Co., Inc., William Blair & Company, LLC, Aegis Capital Corp., Insperex LLC (f/k/a Incapital LLC), The Benchmark Company, LLC, Boenning & Scatteredgood, Inc., Colliers Securities, LLC, Kingswood Capital Markets, and ThinkEquity. The plaintiff asserts three causes of action alleging that Ontrak violated § 11, § 12(a)(2), and § 15 of the Securities Act of 1933, respectively, (1) by failing to disclose facts required to be disclosed under SEC Regulation S-K items 105 and 303 – that Aetna had turned off the data feed of customer records to Ontrak citing dissatisfaction with the Company’s value proposition and billing practices and thereafter submitted a CAP to which Ontrak’s senior executives were unable to effectively respond to; and (2) by issuing allegedly false or misleading statements in its Registration Statements and Prospectuses: (a) regarding Ontrak’s growing customer base; (b) regarding its ability to scale its operations; (c) that revenue from a limited number of its customers would continue; (d) that its services are provided to customers continuously; (e) that revenue increases were attributable to continued expansion of the Ontrak program; and (f) regarding the healthcare experience of its executives. The plaintiff seeks damages in an indeterminate amount. On July 7, 2022, the defendants filed demurrers to the complaint. On October 4, 2022, the Court issued its ruling, allowing the case to proceed but with a narrowed scope. Specifically, of the six alleged misleading statements, only two remain (that Ontrak had a growing “growing customer base” and that Ontrak’s revenue growth was attributed to “[t]he continued expansion of [its] Ontrak program with [its] existing health plan customers”). The Court sustained the Company’s demurrer to the second cause of action, for violation of Section 12 of the Securities Act of 1933, with leave to amend. The Company believes that the remaining allegations lack merit and intends to defend against the action vigorously.

reference herein.

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, ~~2021,~~2022, which we filed with the SEC on April ~~15, 2022.~~17, 2023. 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, ~~2021,~~2022, 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 Quarterly Report on Form 10-Q, our Annual Report on Form 10-K and our other filings with the SEC, before making an investment decision regarding our securities.


			●			We will need additional funding, and we cannot guarantee that we will satisfy the conditions precedent for the $6.0 million that remains to be borrowed under the Keep Well Agreement or find adequate sources of capital in the future.
			●			We have incurred significant losses since our inception and may be unable to obtain additional funds before we achieve positive cash flows.
			●			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; during 2021, we lost two of such customers and any further loss would have a material adverse effect on us.
			●			~~Amounts available to us~~We have $19.0 million in principal amount of secured debt outstanding under the Keep Well Agreement, ~~we entered into in April 2022,~~ and ~~as amended in November 2022, may not be available~~a default thereunder would have material adverse consequences to ~~us if we do not satisfy the conditions to borrow funds thereunder.~~our financial condition, operating results, and business.
			●			The Keep Well Agreement contains significant restrictions on our business and operations and requires ongoing compliance with ~~detailed~~certain covenants, including financial ~~covenants.~~covenants, and our common stock must be listed on Nasdaq for us to receive the remaining $6.0 million to be borrowed under the Keep Well Agreement. Any failure to comply with the terms of ~~such indebtedness~~the Keep Well Agreement or failure to satisfy conditions precedent to funding thereunder would have a material adverse effect on our ~~business and our securities.~~business.
			●			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 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.
			●			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 currently subject to restrictions on transfer contained in our charter and has limited voting rights.
			●			Our ~~Executive Chairman~~largest stockholder controls approximately ~~42%~~40.6% of ~~the~~our outstanding common stock and beneficially owns approximately 85.5% of our common stock, and may determine all matters presented for stockholder approval, including the election of directors, significant corporate transactions and our dissolution.
			●			We are subject to ongoing litigation and may be subject to future litigation, any of which could result in substantial liabilities.
			●			Our common stock and preferred stock may be delisted by Nasdaq.
			●			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 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. Historically, we have seen and continue to see net losses, net loss from operations and negative cash flow from operating activities as we experienced a period of rapid growth, and more recently our results have been negatively impacted by customer terminations. At ~~September 30, 2022,~~March 31, 2023, our cash and restricted cash was ~~$11.9~~$12.1 million and we had a working capital of approximately ~~$11.5~~$7.2 million. We had an average monthly cash ~~flow from operations~~ burn rate of approximately ~~$2.5~~$1.7 million for the ~~nine~~three months ended ~~September 30, 2022~~March 31, 2023 and could continue to incur negative cash flows and operating losses for the next twelve months.

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 financing 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~~will need additional funding, and we cannot guarantee that we will satisfy the conditions precedent for ~~borrowing funds~~the $6.0 million that remains to be borrowed under the Keep Well Agreement or 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~~will require additional funds before we are able to generate enough cash flows to fund our operations and meet our obligations.

~~On April 15, 2022, we~~We entered into a Master Note Purchase Agreement with Acuitas Capital LLC ~~("Acuitas"~~(“Acuitas Capital” and together with its affiliates, including Acuitas Group Holdings, LLC and Terren S. Peizer, “Acuitas”), dated as of April 15, 2022, as amended on each of August 12, 2022, November 19, 2022, and December 30, 2022 (as amended, the “Keep Well Agreement”). Acuitas

Capital is our largest stockholder and an entity indirectly wholly owned and controlled by ~~Terren S.~~Mr. Peizer, ~~the Company's~~our former Chief Executive ~~Chairman~~Officer and ~~largest stockholder, and on November 19, 2022, we entered into an amendment to the Keep Well Agreement (as amended to~~Chairman. To date, ~~the "Keep Well Agreement"). On July 15, 2022,~~ we borrowed ~~$5.0~~$19.0 million of the $25.0 million that we may borrow under the Keep Well ~~Agreement and applied~~Agreement. Of the proceeds therefrom to pay off in full all outstanding amounts owed under that certain Note Purchase Agreement, dated as of September 24, 2019, by and among us, as issuer, certain of our subsidiaries, as guarantors, the purchasers party thereto, and Goldman Sachs Specialty Lending Group, L.P., as collateral agent. On September 7, 2022, we borrowedremaining $6.0 million ~~under Keep Well Agreement to fund our working capital requirements. Under the terms of the amendment~~ we ~~entered into on November 19, 2022, the funding structure was changed from borrowings as needed from time to time at our election, to us agreeing to~~may borrow, ~~and Acuitas agreeing to lend,~~ subject to the conditions in the Keep Well Agreement, ~~the entire remaining amount of $14.0~~$4.0 million is to be funded ~~as follows: $4.0 million~~ in ~~each of January, March and~~ June 2023 and $2.0 million in September 2023.

One of the conditions precedent to funding is that our common stock is listed on The Nasdaq Stock Market (“Nasdaq”), and there are no assurances that we will satisfy that condition in the future. See “

AsAcuitas Group Holdings, LLC owns approximately 40.6% of our outstanding common stock and beneficially owns approximately 85.5% of our outstanding common stock, and as a result of such ownership has the ability to substantially influence the election of directors and other matters submitted to stockholders” and “There can be no assurance that our ~~borrowing funds under~~common stock will continue to be listed on Nasdaq or, if listed, that we will be able to comply with the ~~Keep Well Agreement, we are subject~~continued listing standards of Nasdaq, which could limit investors’ ability to ~~certain negative and affirmative covenants~~make transactions in our securities and subject us to ~~other~~additional trading restrictions ~~on our business operations.~~,” below. For additional information regarding the Keep Well Agreement, ~~and the transactions related thereto, please~~ see the ~~discussion regarding Keep~~section titled, “Keep Well ~~Agreement~~Agreement” in Note 10 ~~and Note 14 of~~in the Notes to Condensed Consolidated Financial Statements in Part I, Item 1 ~~Part I~~ of this ~~Quarterly Report on Form 10-Q.~~report.

In ~~connection with each borrowing~~addition, even if we borrow the remaining $6.0 million available under the Keep Well Agreement, ~~Acuitas received and will receive warrants~~we may need to purchase shares of our common stock, and, subject to stockholder approval, Acuitas, at its option, will have the right to convert the entire principal amount of all amounts we borrow under the Keep Well Agreement, plus all accrued and unpaid interest thereon, in whole or in part, into shares of our common stock at a conversion price equal to the lesser of $0.40 per share and the closing price of our common stock on the trading day immediately prior to the applicable conversion date. In addition, subject to stockholder approval, in connection with any such conversion, we will issue Acuitasraise additional ~~warrants to purchase shares of our common stock; the number of shares subject to each such warrant~~funding. We do not know whether additional funding will be ~~equal~~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 ~~(x) 100% of the amount converted divided by (y) the conversion price then in effect, and the exercise price of each such warrant will be equal to the conversion price then in effect. Assuming~~downsize, curtail program development efforts or halt our ~~stockholders approve all the equity issuances under the Keep Well Agreement that require stockholder approval~~operations altogether.

under the Nasdaq Listing Rules, the issuance of all of the remaining warrants under Keep Well Agreement (assuming the denominator for determining the number of warrants that would be issued is 0.45) and the exercise thereof, and the conversion of the principal amount of all Keep Well Notes into shares (at a conversion price equal to $0.40 per share), the issuance of warrants in connection with such conversion and the exercise thereof, we will issue to Acuitas approximately 183 million shares of our common stock, subject to the 90% issuance cap in the Keep Well Agreement. The number of shares issuable under the Keep Well Agreement, if issued, will result in substantial dilution to our stockholders, other than Acuitas. 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.~~operations.

We ~~do not know whether additional financing~~have $19.0 million in principal amount of secured debt outstanding under the Keep Well Agreement, and a default thereunder would have material adverse consequences to our financial condition, operating results, and business.

The Keep Well Agreement includes customary events of default for a first priority senior secured debt facility. In the event of default under the Keep Well Agreement, Acuitas and the collateral agent under the Keep Well Agreement would have the rights that a secured creditor with a first priority lien on a company’s assets would have, including, the right to collect, enforce or satisfy any secured obligations then owing, including by foreclosing on the collateral securing our obligations under the Keep Well Agreement (which generally comprise all of our assets), restrictions on the operation of our business would spring into effect, and Acuitas would have no obligation to fund any future borrowings under the Keep Well Agreement. A default under the Keep Well Agreement would have material adverse consequences to our financial condition, operating results, and business, and could cause us to become insolvent or enter bankruptcy proceedings, and our stockholders may lose all or a portion of their investment because of the priority of the claims of Acuitas, in its capacity as a secured creditor, on our assets. See also “Acuitas Group Holdings, LLC owns approximately 40.6% of our outstanding common stock and beneficially owns approximately 85.5% of our outstanding common stock, and as a result of such ownership has the ability to substantially influence the election of directors and other matters submitted to stockholders,” below.

The amounts we borrow under the Keep Well Agreement bear interest at a variable rate which could cause our outstanding indebtedness to increase significantly.

The amounts we borrow under the Keep Well Agreement bear interest based on the 30 day tenor Term Secured Overnight Financing Rate (SOFR) Reference Rate, which is subject to a monthly adjustment, plus a margin specified in the Keep Well Agreement. As a result, in an increasing interest rate environment, the interest rate on the amounts we borrow under the Keep Well Agreement is subject to increase, thereby resulting in increased interest expense. The 30 day tenor Term SOFR Reference Rate has steadily increased in the past year. At March 31, 2023, we had a total of $1.4 million of accrued paid-in-kind interest related to the Keep Well Notes and the effective weighted average interest rate for the Keep Well Notes was 20.34%. Accrued interest on the principal amount of borrowings under the Keep Well Agreement is added to principal, which either we will be ~~available~~required to repay on ~~commercially acceptable~~the maturity date, June 30, 2024, or, if converted into shares of our common stock in accordance with the terms ~~or at all. If adequate funds are not available or are not available on commercially acceptable terms, we may need~~of the Keep Well Agreement, will result in additional dilution to ~~downsize, curtail program development efforts or halt~~ our ~~operations altogether.~~stockholders. See Note 10 of the Notes to Condensed Consolidated Financial Statements in Part I, Item 1 of this report for more information.

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 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.

Failure to effectively develop and expand our sales and marketing capabilities could harm our ability to execute our business plan, increase our customer base and achieve broader market acceptance of our program.

Our ability to increase our customer base and achieve broader market acceptance of our Ontrak program will depend to a significant extent on our ability to deploy our sales and marketing resources efficiently and our ability to drive our current sales pipeline to secure new customers and to cultivate customer and partner relationships to drive revenue growth in the next twelve months. We are focused on identifying and developing new customer opportunities and these efforts require us to invest significant financial and other resources. Our business and operating results will be harmed if our sales and marketing efforts do not generate significant increases in revenue in the next twelve months.

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 in comparison to the total addressable 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.

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 a few large customers, any or all of which may terminate our services at any time.

Three customers accounted for an aggregate of approximately ~~95%~~97% and ~~five~~four customers accounted for an aggregate of approximately ~~94%~~95% of our total revenue for the three months ended ~~September 30,~~March 31, 2023 and 2022, ~~and 2021,~~ respectively. Three customers accounted for an aggregate of approximately 93% and five customers accounted for an aggregate of approximately 96% of our total revenue for the nine months ended September 30, 2022 and 2021, respectively.

Also, ~~two~~four customers represented an aggregate of approximately ~~93%~~100% and ~~100%~~99% of our total accounts receivable as of ~~September 30, 2022~~March 31, 2023 and December 31, ~~2021,~~2022, respectively.

On February 26, 2021, we received a termination notice from our then largest customer and working with this customer on a transition plan, we completed the participation of this customer's members in the program as of December 31, 2021. On August 18, 2021, we received a termination notice from another large customer of their intent not to continue the program past December 31, 2021. As of December 31, 2021, members from these two customers have completed their participation in the program.

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.

Our business and growth strategy depend on our ability to maintain and expand a network of qualified healthcare providers. If we are unable to do so, our future growth and our business, financial condition and results of operations would be negatively impacted.

The success of our business is dependent upon our continued ability to maintain a network of qualified healthcare providers. In any particular market that we operate in, providers could demand higher payments or take other actions that could result in higher medical costs, less attractive service for our members or difficulty meeting regulatory or accreditation requirements. The failure to maintain or to secure new cost-effective provider contracts may result in a loss of or inability to grow our member base, higher costs, healthcare provider network disruptions, and less attractive service for our members, any of which could have a material adverse effect on our business, growth strategy, financial condition and results of operations.

We are subject to ongoing litigation and may be subject to future litigation, any of which could result in substantial ~~liabilities that may exceed our insurance coverage.~~liabilities.

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 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 are also subject to ongoing securities class action and stockholder derivative litigation. See Note 13, “Commitments and Contingencies” in the Notes to Condensed Consolidated Financial Statements, in Part I, Item 1, included in this report. In addition, on March 1, 2023, the U.S. Department of Justice (the “DOJ”) announced charges and the SEC filed a civil complaint against Mr. Peizer, our former Chief Executive Officer and Chairman of our Board of Directors, alleging unlawful insider trading in our stock. Mr. Peizer owns and controls Acuitas Capital, our largest stockholder. See “Acuitas Group Holdings, LLC owns approximately 40.6% of our outstanding common stock and beneficially owns approximately 85.5% of our outstanding common stock, and as a result of such ownership has the ability to substantially influence the election of directors and other matters submitted to stockholders.” Neither we nor any of our other current or former directors or employees were charged by the DOJ or sued by the SEC. On November 15, 2022, we received a notification from the SEC’s Division of Enforcement that it is conducting an investigation captioned "In the Matter of Trading in the Securities of Ontrak, Inc. (HO-14340)" and issued a preservation letter as well as a subpoena for documents relating to the investigation. The notification indicates the investigation is a fact-finding inquiry for compliance with federal securities laws and should not be construed as an indication by the SEC that any violation of law has occurred, nor as a reflection upon any person, entity or security. We have been cooperating fully with the terms of the subpoena. We cannot predict the ultimate outcome of the DOJ or SEC proceedings, nor can we predict whether the DOJ or SEC or any other governmental authorities will initiate separate investigations or litigation, including against us. Investigations and any related legal and administrative proceedings could include a wide variety of outcomes, including the institution of administrative, civil injunctive or criminal proceedings involving the Company and/or its current or former executives and/or directors, the imposition of fines and other penalties, remedies and/or sanctions.

In addition, from time to time, we may also be involved in legal proceedings and investigations arising in the ordinary course of business, including those relating to employment matters, relationships with partners, intellectual property disputes, and other business matters.

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~~

We have incurred and may continue to incur significant expenses as a result of litigation ~~we may sustain significant damages~~and other legal proceedings. In addition, the results of litigation and other legal proceedings are inherently uncertain and adverse judgments or ~~settlement expense~~settlements (regardless of a ~~claim's~~claim’s merit), in any legal disputes may result in materially adverse monetary damages or injunctive relief against us. Any claims, investigations or litigation, ~~expense~~even if fully indemnified or insured, could damage our reputation and ~~significant harm~~make it more difficult to compete effectively or obtain adequate insurance in the future. In addition, claims, investigations or litigation may be time-consuming, costly, divert management resources, and otherwise have a material adverse effect on our ~~reputation.~~business and result of operations.

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 federal net operating loss ~~carryforwards~~carry forwards ("NOLs") ~~will begin to expire in 2023.~~have an indefinite life. 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.

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.

On July 15, 2022, our Board approved an amendment to the Company’s Certificate of Incorporation to remove the Protective Amendment and declared its advisability. By notice dated July 25, 2022, our stockholders were notified of the meeting date of our annual stockholders meeting for 2022, at which annual meeting our stockholders was asked to approve, and approved, the removal of the Protective Amendment provisions. We cannot assure you that such removal will be effected, though approved by our stockholders, or that the use of our NOLs, or a portion thereof, against our future taxable income will not be subject to an annual limitation under Section 382, which may result in expiration of a portion of our NOLs before utilization.

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. 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.

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 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.

We expect that additional state and federal healthcare reform measures may be adopted in the future, any of which could limit the amounts that federal and state governments will pay for healthcare therapies, which could result in reduced demand for our services or additional pricing pressures. In August 2022, President Biden signed into law the Inflation Reduction Act of 2022 (“IRA”), which, among other provisions, included several measures intended to lower the cost of prescription drugs and related healthcare reforms. The IRA permits the Secretary of the Department of Health and Human Services to implement many of these provisions through guidance, as opposed to regulation, for the initial years. We cannot be sure whether additional legislation or rulemaking related to the IRA will be issued or enacted, or what impact, if any, such changes will have on our business.

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, 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 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.

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.

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. On October 13,

2022, the Department of Labor published its “Employee or Independent Contractor Classification under the Fair Labor Standards Act” (the “FLSA Standards”) that would rescind existing guidance adopted under the Trump Administration and broaden the scope of the so-called “economic realities test” used to classify workers, likely making it more difficult for workers to be classified as independent contractors. 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 particularly if the new FLSA Standards are adopted. 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 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. In addition, to the extent we disclose such information to our third-party service providers in the course of our business, we may be indirectly liable for their misuse or other unauthorized disclosure of such personal information (including health information). 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, breaches or interruptions due to the malfeasance or negligence of any of our third-party service providers, terrorist attacks, earthquakes, fire, 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 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~~March 31, ~~30,~~ ~~2022,~~2023, our total liabilities ~~equaled $17.5~~was $18.2 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.

Our future debt instruments may restrict the authorization, payment or setting apart of dividends on 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.

There can be no assurance that our Series A Preferred Stock will continue to be listed on Nasdaq, which could limit investors’ ability to make transactions in our Series A Preferred Stock.

Our Series A Preferred Stock is traded on the Nasdaq Capital Market under the symbol “OTRKP.” To maintain our listing we are required to satisfy continued listing requirements, including the requirement commonly referred to as the minimum bid price rule. The minimum bid price rule requires that the closing bid price of our Series A Preferred Stock be at least $1.00 per share. At the end of 2022 and the beginning of 2023, we were not in compliance with the minimum bid price rule with respect to our Series A Preferred Stock. We regained compliance with the rule in February 2023, but subsequently on April 13, 2023, we received a notice from the Staff of the Listing Qualifications Department of The Nasdaq Stock Market LLC indicating that we no longer met the minimum bid price rule with respect to our Series A Preferred Stock because the closing bid price of our Series A Preferred Stock was less than $1.00 for the previous 30 consecutive business days. The notice had no immediate effect on the listing of our Series A Preferred Stock on The Nasdaq Capital Market. We have 180-calendar days (or until October 10, 2023) to regain compliance. If at any time during such 180-calendar day period the closing bid price of our Series A Preferred Stock is at least $1.00 for a minimum of 10 consecutive business days, Nasdaq will provide us written confirmation of compliance and the matter will be closed. There can be no assurance that we will be able to regain compliance with the minimum bid price rule or continue to satisfy other continued listing standards and maintain the listing of our Series A Preferred Stock on Nasdaq. The suspension or delisting of our Series A Preferred Stock, or the commencement of delisting proceedings, for whatever reason could, among other things, materially impair our stockholders’ ability to buy and sell shares of our Series A Preferred Stock and could have an adverse effect on the market price of, and the efficiency of the trading market for, our Series A Preferred Stock. See also “There can be no assurance that our common stock will continue to be listed on Nasdaq or, if listed, that we will be able to comply with the continued listing standards of Nasdaq, which could limit investors’ ability to make transactions in our securities and subject us to additional trading restrictions,” below.

The liquidity of the market for our Series A Preferred Stock also depends on a number of other factors, including prevailing interest rates, our financial condition and operating results, the number of holders of our Series A Preferred Stock, the market for similar securities and the interest of securities dealers in making a market in our 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.

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~~report or ~~our Annual Report on Form~~in the 2022 10-K were to occur. Also, payment of our dividends depends upon our financial condition and other factors as our ~~board~~Board of ~~directors~~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~~or “surplus” 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~~pay the cash dividends on the Series A Preferred Stock, such account will 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.Stock. In addition, our Board of Directors is not required to declare a dividend on the Series A Preferred Stock and did not declare a dividend on the Series A Preferred Stock for the quarters ended May 30, 2022, ~~and~~ August 31, ~~2022. In addition, our Board of Directors may determine~~2022, November 30, 2022 and February 28, 2023. On April 19, 2023, approximately $4.5 million that the ~~use of such amount~~Company maintained in a segregated account to pre-fund quarterly dividend payments 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.

~~Our Certificate of Incorporation currently contains provisions limiting the transferability and conversion of the Series A Preferred stock.~~

As noted above, the Protective Amendment was 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 until August 2022 was made available for general corporate purposes and was classified as ~~such does not meet~~unrestricted cash on 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~~Company’s consolidated balance sheet. Our Board of Directors ~~has approved~~deemed the ~~issuance of our Series A Preferred Stock after determining that such issuance is not likely~~foregoing to ~~result~~be 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, until such time as our stockholders approve the removal~~best interests of the ~~Protective Amendment. By notice dated July 25, 2022, our~~Company and its common stockholders ~~were notified~~in light of the ~~meeting date of our annual stockholders meeting for 2022, at which annual meeting our stockholders was asked,~~Company’s current and ~~the stockholders approved, the removal of the Protective Amendment provisions.~~

~~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, ouranticipated financial condition and ~~operating results,~~outlook, and after considering its fiduciary duties to the ~~number of holders of the Series A Preferred Stock, the market for similar securities~~Company’s common stockholders 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.other relevant factors.

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 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.

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;

• 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 42%~~

Acuitas Group Holdings, LLC owns approximately 40.6% of ouroutstanding commonstock isand beneficially ~~owned~~byowns approximately 85.5% of our ~~Executive Chairman, who~~outstanding common stock, and as a result of such ownership has the ability to substantially influence the election of directors and other matters submitted to stockholders.

As of the date of this ~~Quarterly Report on Form 10-Q, 12,195,575~~report, 11,891,933 shares of our outstanding common stock were owned by, and 102,654,155 shares of our common stock were beneficially ~~held of record~~owned by, Acuitas Group Holdings, LLC, ~~(“Acuitas”),~~ an entity indirectly wholly owned and controlled by ~~Terren S.~~Mr. Peizer, which represents the ~~Company's Executive Chairman~~ownership of approximately 40.6% of our outstanding common stock and ~~largest stockholder, which represented~~the beneficial ownership of approximately ~~42% of our outstanding shares of common stock.~~ ~~In addition, if our stockholders approve the terms of the Keep Well Agreement that require stockholder approval under Nasdaq listing rules for the issuance of shares~~85.5% of our common ~~stock, and for the issuance of securities exercisable for or convertible into shares of our common stock,~~stock. In addition, under the Keep Well Agreement, the beneficial ownership of Acuitas Group Holdings and its affiliates may increase to 90% of our future outstanding shares of common stock. AsAs a result, heAcuitas has and is expected to continue to have the ability to ~~significantly~~significantly influence the election of our Board of Directors and the outcome of all other matters submitted to our stockholders. ~~His~~Acuitas’ interest may not always coincide with our interests or the interests of other stockholders, and heAcuitas may act in a manner that advances ~~his~~its 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.~~management. It could also deter unsolicited takeovers, including transactions in which stockholders might otherwise receive a premium for their shares over then current market prices.

There can be no assurance that our common stock will continue to be listed on Nasdaq or, if listed, that we will be able to comply with the continued listing standards of Nasdaq, which could limit investors’ ability to make transactions in our securities and subject us to additional trading restrictions.

Our common stock is traded on NASDAQ under the symbol “OTRK.” On September 14, 2022, we received a notice from the Staff of the Listing Qualifications Department of The Nasdaq Stock Market LLC ~~(“Nasdaq”)~~ indicating that ~~the Company~~we no longer met the minimum bid price requirement set forth in Nasdaq Listing Rule 5450(a)(1) (the “Minimum Bid Price Requirement”) because the closing bid price for ~~the Company’s~~our common stock was less than $1.00 for the previous 30 consecutive business days. The notice had no immediate effect on the listing of ~~the Company’s~~our common stock on The Nasdaq Global Market.

Under Nasdaq Listing Rule 5810(c)(3)(A), ~~the Company has~~we had a 180-calendar day grace period, or until March 13, 2023, ~~(the “Compliance Date”),~~to regain compliance with the Minimum Bid Price Requirement. Because we did not regain compliance with the Minimum Bid Price Requirement by March 13, 2023, in order to receive a second 180-calendar day grace period within which to regain compliance, in accordance with Nasdaq Listing Rules, we applied to the Listing Qualifications Department of Nasdaq to transfer the listing of our common stock from The Nasdaq Global Market to The Nasdaq Capital Market and notified Nasdaq of our intention to cure the deficiency during the additional 180-calendar day grace period, such as by effecting a reverse stock split, if necessary.

On March 14, 2023, we received approval to transfer the listing of our common stock from The Nasdaq Global Market to The Nasdaq Capital Market, and as a result, we were granted a second 180-day grace period, or until September 11, 2023, to regain compliance with the Minimum Bid Price Requirement. The Minimum Bid Price Requirement will be met if ~~the Company’s~~our common stock has a minimum closing bid price of at least $1.00 per share for a minimum of 10 consecutive business days during the 180-calendar day grace period, unless Nasdaq exercises its discretion to extend such 10-day period. ~~If the Company does not regain compliance by the Compliance Date, the Company may~~We will be ~~eligible for an additional 180-calendar day compliance period, subject to satisfying the conditions in the applicable Nasdaq Listing Rules. The Company is~~ monitoring the closing bid price of ~~its~~our common stock and will ~~consider options~~effect a reverse stock split, if necessary, in an attempt to regain ~~compliance with the Minimum Bid Price Requirement. However, there~~compliance. There can be no assurance that ~~the Company~~we will be able to regain compliance with the Minimum Bid Price Requirement. If we do not regain compliance by September 11, 2023, we will receive a notification from Nasdaq that our common stock is subject to delisting. At that time, we may appeal the delisting determination to a Nasdaq hearings panel. Such notification will have no immediate effect on our listing on The Nasdaq Capital Market, nor will it have an immediate effect on the trading of our common stock pending such hearing, if we were to seek an appeal. In addition, even if we were to regain compliance with the Minimum Bid Price Requirement, orthere can be no assurance that ~~the Company~~we will ~~continue~~be able to ~~meet~~maintain compliance with other continued listing ~~requirements.~~requirements for The Nasdaq Capital Market or that our common stock will not be delisted from The Nasdaq Capital Market in the future. For example, ~~the Company must continue to meet one of four different listing standards to remain listed on the Nasdaq Global Market. Currently, the~~

Company satisfies the “equity standard” which requires that the Company have: (a) stockholders' equity of at least $10 million; (b) at least 750,000 publicly held shares; (c) a market value of publicly held shares of at least $5 million; and (d) at least two registered and active market makers. The Company’s stockholders’ equity may become less than $10 million in early 2023, and, if it does, the Company would not satisfy the “equity standard” and may not satisfy any of the other continued listing standards to remain listed on the Nasdaq Global Market. If that were to be the case, the Company could seek to transfer to the Nasdaq Capital Market. However, the Nasdaq Capital Market requires that companies have: (x) stockholders' equity of at least $2.5 million; (y) a market value of listed securities of at least $35 million; or (z) net income from continuing operations of $500,000 in the ~~Company’s~~company’s most recently completed fiscal year or in two of the three most recently completed fiscal years. ~~The Company’s~~Our stockholders’ equity may become less than $2.5 million later in ~~early~~ 2023 and ~~the Company does~~we do not currently meet either of the two alternative compliance standards described in clause (y) and (z).

In addition, even if we were to regain compliance with the Minimum Bid Price Requirement, there can be no assurance that we will be able to maintain compliance with other continued listing requirements for The Nasdaq Capital Market or that our common stock will not be delisted from The Nasdaq Capital Market in the future. For example, The Nasdaq Capital Market requires that companies have: (x) stockholders' equity of at least $2.5 million; (y) a market value of listed securities of at least $35 million; or (z) net income from continuing operations of $500,000 in the company’s most recently completed fiscal year or in two

of the three most recently completed fiscal years. Our stockholders’ equity may become less than $2.5 million later in 2023 and we do not currently meet either of the two alternative compliance standards described in clause (y) and (z).

In addition to the specified criteria for continued listing, Nasdaq also has broad discretionary public interest authority that it can exercise to apply additional or more stringent criteria for continued listing on the Nasdaq. Nasdaq has exercised this discretionary authority in the past. As reported above, as of the date of this report, Acuitas Group Holdings, LLC owns approximately 40.6% of our outstanding common stock, beneficially owns approximately 85.5% of our common stock, and we have borrowed $19.0 million in principal amount of secured debt from Acuitas under the Keep Well Agreement. Mr. Peizer owns and controls Acuitas and, as reported above, on March 1, 2023, the DOJ announced charges and the SEC filed a civil complaint against Mr. Peizer alleging unlawful insider trading in our stock. On March 1, 2023, Nasdaq requested certain information from us related to the charges against Mr. Peizer. We responded to those requests. No assurances can be given that Nasdaq will not exercise its discretionary public interest authority to delist our common stock or Series A preferred stock due to public interest concerns related to Acuitas’ ownership of our common stock or its relationship to us under the Keep Well Agreement.

Maintaining the listing of our common stock on Nasdaq is a condition precedent to receiving the remaining $6.0 million that we will borrow under the Keep Well Agreement. See “We will need additional funding, and we cannot guarantee that we will satisfy the conditions precedent for the $6.0 million that remains to be borrowed under the Keep Well Agreement or find adequate sources of capital in the future,” above.

If our common stock is ultimately delisted by Nasdaq, and we are not able to list our securities on another national securities exchange, we expect our securities could be quoted on an over-the-counter market. If this were to occur, then we could face significant material adverse consequences, including:

•less liquid trading market for our securities;

•more limited market quotations for our securities;

•determination that our common stock is a “penny stock” that requires brokers to adhere to more stringent rules and possibly resulting in a reduced level of trading activity in the secondary trading market for our securities;

•more limited research coverage by stock analysts;

•loss of reputation; and

•more difficult and more expensive equity financings in the future.

The National Securities Markets Improvement Act of 1996, which is a federal statute, prevents or preempts the states from regulating the sale of certain securities, which are referred to as “covered securities.” If our common stock remains listed on Nasdaq, our common stock will be covered securities. Although the states are preempted from regulating the sale of our securities, the federal statute does allow the states to investigate companies if there is a suspicion of fraud, and, if there is a finding of fraudulent activity, then the states can regulate or bar the sale of covered securities in a particular case. If our securities were no longer listed on Nasdaq and therefore not “covered ~~securities”,~~securities,” we would be subject to regulation in each state in which we offer our securities.

We incur increased costs as a result of operating as a public company, and our management devotes substantial time to compliance initiatives.

We incur significant legal, accounting and other expenses as a public company, including costs resulting from public company reporting obligations under the Exchange Act and regulations regarding corporate governance practices. ~~The~~Nasdaq's listing requirements ~~of The Nasdaq Global Market~~ and the rules of the Securities and Exchange Commission, or the SEC, require that we satisfy certain corporate governance requirements relating to director independence, filing annual and interim reports, stockholder meetings, approvals and voting, soliciting proxies, conflicts of interest and a code of conduct. Our management and other personnel devote a substantial amount of time to ensure that we comply with all of these requirements. Moreover, the reporting requirements, rules and regulations associated with being a public company result in significant legal and financial compliance costs and make some activities more time-consuming and costly. These reporting requirements, rules and regulations, coupled with the increase in potential litigation exposure associated with being a public company, could also make it more difficult for us to attract and retain qualified persons to serve on our board of directors or board committees or to serve as executive officers, or to obtain certain types of insurance, including directors’ and officers’ insurance, on acceptable terms and we may be forced to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage.

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.

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 additional securities class action lawsuits if the market price of our stock drops significantly, which may cause us to incur further substantial costs and continue to 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, 2022,~~March 31, 2023, approximately ~~10 m~~12 million shares ~~illion shares~~ of our common stock were 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, 2022,~~March 31, 2023, we had outstanding options to purchase ~~3,378,626~~5,585,828 shares of our common stock at exercise prices ranging from ~~$0.65~~$0.36 to $86.57 per share and warrants to purchase ~~1,576,256~~42,496,703 shares of our common stock at exercise prices ranging from $0.01 to $13.68 per share. Also, as of ~~September 30, 2022,~~March 31, 2023, we had a total of ~~1,452,026~~1,443,651 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.

We have historically relied in part on sales of our common stock to fund our operations, and our future ability to obtain additional capital through stock sales or other securities offerings may be more costly than in the past, or may not be available to us at all.

We have historically relied in part on sales of our common stock to fund our operations. For example, we raised an aggregate of approximately $15.1 million in gross proceeds in fiscal years 2021 and 2022 through the sale of shares of our common stock in offerings made under a Form S-3 “shelf” registration statement. Using a shelf registration statement to conduct an equity offering to raise capital generally takes less time and is less expensive than other means, such as conducting an offering under a Form S-1 registration statement. We are no longer eligible to use a shelf registration statement due to non-payment of dividends on our Series A preferred stock since December 31, 2022. We may choose to conduct an offering of our securities under an exemption from registration under the Securities Act or under a Form S-1 registration statement, but we would expect either of these alternatives to be a more expensive method of raising additional capital and more dilutive to our stockholders relative to using a shelf registration statement.

The holders of our Series A Preferred Stock may be entitled to elect two directors to our board of directors.

Under the terms of the certificate of designation for our Series A Preferred Stock, if dividends on our Series A Preferred have not been paid in an aggregate amount equal to the equivalent of at least six or more quarterly dividends (whether consecutive or not), the number of directors constituting our Board of Directors will be increased by two, and the holders of our Series A Preferred Stock, will have the right, voting separately as a single class, to fill such newly created directorships (and to fill any vacancies in the terms of such directorships). Dividends on our Series A Preferred Stock are payable every February 28, May 30, August 31, and November 30. We did not pay the dividends on our Series A Preferred Stock payable in each of May 2022, August 2022, November 2022 and February 2023. Accordingly, if we do not pay all such dividends and we do not pay dividends with respect at least two additional quarterly dividend dates, the holders of our Series A Preferred Stock will have the right to elect two directors to our board of directors.

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.

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 on our common stock 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.

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

In ~~September 2022,~~each of January 2023 and March 2023, we borrowed $4 million under the Keep Well Agreement and in connection with each such borrowing, we issued ~~739,645 unregistered, restricted~~to Acuitas a Keep Well Note and a warrant to purchase shares of our common stock. A warrant to purchase 473,373 shares of our common stock and ~~warrants~~a warrant to purchase ~~an aggregate of 1,301,775~~8,888,889 shares of our common stock ~~pursuant to~~were issued in connection with the ~~terms of the Keep Well Agreement.~~January 2023 and March 2023 borrowing, respectively. These securities were issued in reliance upon Section 4(a)(2) of the Securities Act as a transaction by an issuer not involving a public offering.

In February 2023, we issued 2,038,133 shares of our common stock to Acuitas, and warrants to purchase 1,775,148 shares of our common stock previously issued to Acuitas pursuant to the Keep Well Agreement were exchanged for warrants to purchase 33,333,333 shares of our common stock. These securities were issued in reliance upon Section 4(a)(2) of the Securities Act as a transaction by an issuer not involving a public offering.

Item 3. Defaults Upon Senior Securities

Preferred Dividend Arrearage

Holders of the Series A Preferred Stock are entitled to receive, when, as and if declared by our Board of Directors ~~(the "Board")~~ out of funds legally available ~~for such dividends,~~therefor, 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 or $0.593750 per quarter per share). Our Board of Directors has not declared dividends on the Series A Preferred Stock since May 2022. As such, as of the date of the filing of this ~~Quarterly Report on Form 10-Q,~~report, we had ~~$6.2~~approximately $10.7 million of undeclared dividends in arrears. For more information about the Series A Preferred Stock, see Note 7 of the Notes to Condensed Consolidated Financial Statements in Part I, Item 1 of this ~~Quarterly Report on Form 10-Q.~~

report.

Item 4. Mine Safety Disclosures.

Not applicable.

Item 5. Other Information

~~On November 19, 2022, the Company and Acuitas entered into an amendment to the Keep Well Agreement (the "Second Amendment"), pursuant to which, among other things:~~None.

~~• the maturity date of the Keep Well Notes was extended from September 1, 2023 to June 30, 2024;~~

• the funding structure was changed from borrowings as needed from time to time at the election of the Company, to the Company agreeing to borrow, and Acuitas agreeing to lend, subject to the conditions in the Keep Well Agreement (which conditions were also amended as described below), the entire remaining amount of $14.0 million, to be funded as follows: $4.0 million in each of January, March and June 2023 and $2.0 million in September 2023;

Company, the Company will not have sufficient unrestricted cash to pay and discharge all of its obligations then due or scheduled to become due within the 30 days following the date of the request, and (2) there are no conditions or events that, when considered in the aggregate, raise substantial doubt about the Company’s ability to continue as a going concern through August 15, 2023;

~~• the Company’s obligation to pay accrued interest on a monthly basis was eliminated, and instead accrued interest will be added to the principal amount of the applicable Keep Well Note;~~

• the financial covenant that the Company’s consolidated recurring revenue be at least $15.0 million was reduced to $11.0 million, however, the satisfaction of such covenant as a condition to funding was eliminated, and certain other affirmative and negative covenants of the Company, the satisfaction of which were conditions to funding, were also eliminated as conditions to funding;

• subject to stockholder approval, the exercise price of the currently outstanding Keep Well Warrants will be reduced to $0.45, which was the consolidated closing bid price of the Company’s common stock as reported on Nasdaq immediately preceding the time the parties entered into the Second Amendment and which will be subject to future adjustment as described below;

• subject to stockholder approval, the number of shares of the Company’s common stock subject to the currently outstanding Keep Well Warrants will be increased to the number of shares that would have been subject to such Keep Well Warrants if the warrant coverage was equal to 100% of the amount borrowed under the Keep Well Agreement in respect of which the applicable Keep Well Warrant was issued (instead of 20%) divided by $0.45;

• subject to stockholder approval, the warrant coverage on future borrowings under the Keep Well Agreement will be increased to a number of shares of the Company's common stock equal to (x) 100% of the amount borrowed under the Keep Well Agreement (instead of 20% of such amount) divided by (y) $0.45 (the "Warrant Coverage Denominator"), subject to future adjustment as described below, and each Keep Well Warrant issued going forward will have an exercise price equal to $0.45 per share, subject to future adjustment as described below;

• subject to stockholder approval, if the reverse stock split is effected, the Warrant Coverage Denominator and the exercise price of each warrant issued pursuant to the Keep Well Agreement that is then outstanding will be reduced to the lesser of (i) the volume-weighted average price of the Company’s common stock over the five trading days beginning on the trading day that commences immediately after the effective time of the reverse stock split (the “Reverse Stock Split Price”) and (ii) the exercise price after giving effect to the adjustment thereto as a result of the reverse stock split (the lesser of (i) and (ii), the “Post-Stock Split Price”), subject to further reduction as described below;

• subject to stockholder approval, the Warrant Coverage Denominator and the exercise price of each warrant issued pursuant to the Keep Well Agreement that is outstanding as of the final funding date under the Keep Well Agreement will be reduced to (i) if the final funding date occurs at any time prior to the time the Reverse Stock Split Price is determined, the closing price of the Company’s common stock on the trading day immediately preceding the final funding date (the “Final Funding Date Price”), or (ii) if the final funding date occurs at any time from and after the time the Reverse Stock Split Price is determined, the lesser of (x) the Post-Stock Split Price and (y) the Final Funding Date Price;

~~• subject to stockholder approval, the Company will issue to Acuitas 2,038,133 additional Commitment Shares;~~

The Company agreed to seek stockholder approval for the amendments to the Keep Well Agreement described above that are subject to stockholder approval at a special stockholders' meeting to be held on or before February 20, 2023.

None of the securities issuable under the Keep Well Agreement have been or will be registered under the Securities Act; all such securities have been and will be offered and sold in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act.

~~The foregoing summary of the Second Amendment does not purport to be complete and is qualified in its entirety by reference to a copy thereof, which is filed as Exhibit 10.5 to this report.~~

Item 6. Exhibits


Exhibit No.						Description
4.1*3.1						~~Form~~Certificate of ~~Senior Secured Convertible Note issuable under Second~~ Amendment ~~to Master Note Purchase Agreement,~~of Amended and Restated Certificate of Incorporation dated ~~as of November 1~~9 , 2022, by and between Ontrak, Inc., certain of its subsidiaries as party thereto as guarantors, and Acuitas Capital LLC, as purchaser and U.S. Bank Trust Company, National Association, as collateral agent.
4.2*						~~Form of Purchase Warrant for Common Shares issuable under Second Amendment to Master Note Purchase Agreement, dated as of November 1~~9 , 2022, by and between Ontrak, Inc., certain of its subsidiaries as party thereto as guarantors, and Acuitas Capital LLC, as purchaser and U.S. Bank Trust Company, National Association, as collateral agent.
~~10.1~~						~~Letter Agreement dated July 15, 2022, between Ontrak, Inc., and Acuitas Capital LLC~~February 21, 2023 (incorporated herein by reference to Exhibit ~~10.1 to~~3.1 of the Company's Form 8-K filed with the SEC on ~~July 21, 2022)~~February 22, 2023).
~~10.2~~10.1						~~Letter~~Stockholders Agreement ~~dated August 26, 2022,~~made and entered into as of February 21, 2023, by and between Ontrak, Inc. and Acuitas Capital LLC (incorporated herein by reference to Exhibit 10.1 to of the Company's Form 8-K filed with the SEC on ~~September 9, 2022)~~February 22, 2023).
~~10.3~~						~~Form of Securities Purchase Agreement (incorporated herein by reference to Exhibit 10.1 to the Company's Form 8-K filed with the SEC on August 4, 2022).~~
~~10.4~~						~~Form of Placement Agency Agreement (incorporated herein by reference to Exhibit 10.2 to the Company's Form 8-K filed with the SEC on August 4, 2022).~~
10.5*						~~Second Amendment to Master Note Purchase Agreement, dated as of November~~ 1 9 , 2022, by and between Ontrak, Inc., certain of its subsidiaries as party thereto as guarantors, and Acuitas Capital LLC, as purchaser and U.S. Bank Trust Company, National Association, as collateral agent.
31.1*						Certification by the Chief Executive Officer, pursuant to Rule 13-a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2*						Certification by the Chief Financial Officer, pursuant to Rule 13-a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1**						Certification by the Chief Executive Officer, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2**						Certification by the Chief Financial Officer, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
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.

6360

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 21, 2022~~May 12, 2023	By:	/s/ ~~TERREN S. PEIZER~~BRANDON H. LAVERNE
		~~Terren S. Peizer~~Brandon H. LaVerne Interim Chief Executive Officer (Principal Executive Officer)

Date: ~~November 21, 2022~~May 12, 2023	By:	/s/ JAMES J. PARK
		James J. Park Chief Financial Officer (Principal Financial Officer)

6461


	For the Nine Months Ended September 30,
	2022		2021
Cash flows from operating activities
Net loss	$	(42,467)	$	(17,093)
Adjustments to reconcile net loss to net cash used in operating activities:
Stock-based compensation expense	6,282		8,871
Write-off of debt issuance costs	3,334		—

Depreciation expense	2,222		658
Amortization expense	1,946		2,181
Gain on forgiveness of PPP loan	—		(171)
Change in fair value of warrants	(121)		—
Change in fair value of contingent consideration	—		1,305
401(k) employer match in common shares	528		860
Common stock issued for consulting services	102		—



Changes in operating assets and liabilities:
Receivables	1,348		11,478
Unbilled receivables	2,823		(834)
Prepaid expenses and other current assets	2,966		1,674
Accounts payable	758		(285)
Deferred revenue	(153)		(15,633)
Leases liabilities	(160)		(208)
Other accrued liabilities	(1,928)		(3,914)
Net cash used in operating activities	(22,520)		(11,111)

Cash flows from investing activities
Purchase of property and equipment	(1,004)		(3,865)
Net cash used in investing activities	(1,004)		(3,865)

Cash flows from financing activities
Repayments of 2024 Notes	(39,194)		—
Proceeds from Keep Well Notes	11,000		—
Proceeds from issuance of common stock	4,000		—
Common stock issuance costs	(706)		—

Dividends paid	(2,239)		(6,712)
Debt issuance costs	(792)		—

Proceeds from warrant exercise	—		58
Proceeds from options exercise	—		5,584
Finance lease obligations	(226)		(243)
Financed insurance premium payments	(2,325)		(2,154)
Payment of taxes related to net-settled stock awards	(6)		—
Net cash used in financing activities	(30,488)		(3,467)

Net change in cash and restricted cash	(54,012)		(18,443)

Cash and restricted cash at beginning of period	65,946		103,210
Cash and restricted cash at end of period	$	11,934	$	84,767

Supplemental disclosure of cash flow information:
Interest paid	$	2,307	$	5,483
Income taxes paid	210		91


		At September 30, 2022						At December 31, 2021
	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	$	(2,236)	$	1,264	$	3,500	$	(1,361)	$	2,139
Customer relationships	5	270		(104)		166		270		(63)		207
Total		$	3,770	$	(2,340)	$	1,430	$	3,770	$	(1,424)	$	2,346


	Number of Shares	Weighted Average Exercise Price
Outstanding as of December 31, 2021	3,618,145	$	7.51
Granted	919,946	3.14

Forfeited	(1,159,465)	10.48

Outstanding as of September 30, 2022	3,378,626	5.03


Options vested and exercisable as of September 30, 2022	1,001,513	$	6.48


	Restricted Stock Units	Weighted- Average Grant Date Fair Value
Non-vested at December 31, 2021	111,874	$	33.27
Granted	1,405,277	0.66
Forfeited	(28,875)	28.31
Vested and distributed	(36,250)	16.79
Non-vested at September 30, 2022	1,452,026	32.18


	Balance as of September 30, 2022
	Level I		Level II		Level III		Total
Letter of credit (1)	$	204	$	—	$	—	$	204
Total assets	$	204	$	—	$	—	$	204

Contingent consideration (2)	$	—	$	—	$	64	$	64
Warrant liabilities (3)	—		—		55		55
Total liabilities	$	—	$	—	$	119	$	119


	At September 30,
	2022	2021	Change	Change %
Effective Outreach Pool	4,163	14,165	(10,002)	(71)	%