UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K
(Mark
One)
☒ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For
the fiscal year ended December 31, 2022
OR
☐TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For
the transition period from ___________________ to ___________________
Commission
File Number 001-38508
LOTTERY.COM
INC.
(Exact
name of registrant as specified in its Charter)
(Address of principal executive offices) (Zip Code)
Registrant’s
telephone number, including area code: (737) 309-4500
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, par value $0.001 per share LTRY The Nasdaq Stock Market LLC
Securities
registered pursuant to Section 12(g) of the Act: None
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. YES ☐ NO ☒
Indicate
by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. YES ☐ NO ☒
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 ☐ NO ☒
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 ☐ NO ☒
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company,
or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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 has filed a report on and attestation to its management’s assessment of the effectiveness
of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered
public accounting firm that prepared or issued its audit report. ☐
Indicate
by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). YES ☐ NO ☒
The
aggregate market value of the voting and non-voting stock held by non-affiliates of the registrant as of June 30, 2022, the last business
day of the registrant’s most recently completed second fiscal quarter, was approximately $39.6 million, calculated by using the
closing price of the registrant’s common stock on such date on The Nasdaq Stock Market LLC of $1.12.
As
of June 15, 2023, there were 50,794,707 shares of the registrant’s common stock, par value $0.001 per share, outstanding.
DOCUMENTS
INCORPORATED BY REFERENCE
None.
Table
of Contents
Page
PART I 1
Item 1. Business. 1
Item 1A. Risk Factors. 10
Item 1B. Unresolved Staff Comments. 53
Item 2. Properties. 53
Item 3. Legal Proceedings. 53
Item 4. Mine Safety Disclosures. 53
Item 6. [Reserved]. 54
Item 7A. Quantitative and Qualitative Disclosures About Market Risk. 70
Item 8. Financial Statements and Supplementary Data. F-1
Item 9A. Controls and Procedures. 71
Item 9B. Other Information. 73
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections. 73
PART III 73
Item 10. Directors, Executive Officers and Corporate Governance. 73
Item 11. Executive Compensation. 78
Item 14. Principal Accounting Fees and Services. 84
Item 15. Exhibits, Financial Statement Schedules. 86
i
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS AND RISK FACTOR SUMMARY
This
Annual Report on Form 10-K (this “Report”) contains forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), including statements about the financial condition, results of operations, earnings outlook and prospects of Lottery.com
Inc. (“Lottery.com”, the “Company”, “we” or “us”). Forward-looking statements appear
in a number of places in this Report, including, without limitation, under the headings in Part I, “Item 1. Business,”
“Item 1A. Risk Factors,” and in Part II, “Item 7. Management’s Discussion and Analysis of Financial
Condition and Results of Operations.” In addition, any statements that refer to projections, forecasts or other characterizations
of future events or circumstances, including any underlying assumptions, are forward-looking statements. Forward-looking statements are
typically identified by words such as “plan,” “believe,” “expect,” “anticipate,” “intend,”
“outlook,” “estimate,” “forecast,” “project,” “continue,” “could,”
“may,” “might,” “possible,” “potential,” “predict,” “should,”
“would” and other similar words and expressions, but the absence of these words does not mean that a statement is not forward-looking.
Forward-looking
statements are based on the current expectations of the management of Lottery.com and are inherently subject to uncertainties and changes
in circumstances and their potential effects and speak only as of the date of such statement. There can be no assurance that future developments
will be those that have been anticipated. These forward-looking statements involve a number of risks, uncertainties or other assumptions
that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements.
These risks and uncertainties include, but are not limited to, those factors discussed and identified in public filings made with the
Securities and Exchange Commission (the “SEC”) by Lottery.com, as well as the following:
ii
● Failure to offer high-quality user support.
● Limited liquidity and trading of our securities.
The
risks described under the heading “Item 1A. Risk Factors” are not exhaustive. Other sections of this Report describe
additional factors that could adversely affect the business, financial condition or results of operations of Lottery.com. New risk factors
emerge from time to time and it is not possible to predict all such risk factors, nor can we assess the impact of all such risk factors
on our business, or the extent to which any factor or combination of factors may cause actual results to differ materially from those
contained in any forward-looking statements. Forward-looking statements are not guarantees of performance. You should not put undue reliance
on these statements, which speak only as of the date hereof. All forward-looking statements attributable to Lottery.com or persons acting
on its behalf are expressly qualified in their entirety by the foregoing cautionary statements. Lottery.com undertakes no obligations
to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise, except
as required by law.
iii
PART
I
Item
1. Business.
Overview
and Recent Developments
We
were originally formed as a Delaware corporation on March 17, 2016, for the purpose of effecting a merger, share exchange, asset acquisition,
stock purchase, reorganization, recapitalization or other similar business combination with one or more businesses. On October 29, 2021,
we consummated a business combination (the “Business Combination”) with AutoLotto, Inc. (“AutoLotto”). Following
the closing of the Business Combination (the “Closing”) we changed our name from “Trident Acquisitions Corp.”
to “Lottery.com Inc.” and the business of AutoLotto became our business. Unless the context requires otherwise, references
to the “Company,” “we,” “us,” “our,” “Lottery.com” and “Lottery.com
Inc.” refer to Lottery.com Inc. and its consolidated subsidiaries after the Closing.
On
July 6, 2022, the Company announced that the Audit Committee (the “Audit Committee”) of the board of directors of the Company
(the “Board”) had retained outside counsel to conduct an independent investigation that revealed instances of non-compliance
with state and federal laws concerning the states in which lottery tickets were procured as well as order fulfillment. The investigation
also identified issues pertaining to the Company’s internal accounting controls (the “Internal Investigation”). Following
a report on the filings of the Internal Investigation, on June 30, 2022, the Board terminated the employment of Ryan Dickinson as the
Company’s President, Treasurer and Chief Financial Officer, effective July 1, 2022. Subsequently, the Company initiated a review
of its cash balances and related disclosures as well as its revenue recognition processes and other internal accounting controls.
On
July 20, 2022, Armanino LLP (“Armanino”), the Company’s registered independent public accountant for the fiscal years
ended December 31, 2021 and 2022, advised the Company that its audited financial statements of for the year ended December 31, 2021 (the
“2021 Audit”) and the unaudited financial statements for the quarter ended March 31, 2022 (the “March 2022 Financials”),
should no longer be relied upon. Armanino advised that it had determined, subsequent to the 2021 Audit and review of the March 2022 Financials,
that the Company had entered into a line of credit in January 2022 that was not disclosed in the footnotes to the 2021 Audit and was
not properly recorded in the March 2022 Financials (see Note 3 to the consolidated financial statements included herein for more details).
On
July 28, 2022, the Board determined that the Company did not have sufficient financial resources to fund its operations or pay certain
existing obligations, including its payroll and related obligations, due to a significant misstatement of our cash balances.
The
following day, on July 29, 2022, the Company effectively ceased operations (the “Operational Cessation”), when it furloughed
the majority of its employees and generally suspended its lottery game sales. The Company’s remaining employees were limited to
the heads of the product, information technology and human resources teams as well as the entire legal and compliance team. Within one
week, several additional employees were recalled from furlough. All non-furloughed employees were retained, at the discretion of the
Company’s then Chief Operating Officer and Chief Legal Officer, to provide the minimal business functions needed to address the
Company’s legal and compliance issues and to secure necessary funding to resume the Company’s operations. Less than half
of these non-furloughed employees remain active in the efforts to restore Company operations and as of March 31, 2023, approximately
$1.9 million in outstanding payroll obligations remain unpaid.
On
September 27, 2022, Armanino resigned as the independent registered public accounting firm of the Company, effective immediately.
On
October 7, 2022, the Audit Committee approved the engagement of Yusufali & Associates, LLC, (“Yusufali”) as the Company’s
new independent registered public accounting firm.
Since
the Operational Cessation, the Company has had minimal day-to-day operations and has primarily focused its operations on restarting certain
of its core businesses (as described in more detail under “-Plans for Recommencement of Company Operations” below),
completing the restatements of the Company’s 2021 Audit and March 2022 Financials and preparing and filing the Company’s
delinquent periodic reports, including Amendment No. 1 to the Company’s Annual Report on Form 10-K/A for the year ended December
31, 2021, which the Company filed on May 10, 2023, Amendment No. 1 to the Company’s Quarterly Report on Form 10-Q/A for the three
months ended March 31, 2022, which the Company filed on May 15, 2023, the Company’s Quarterly Reports on Form 10-Q for the three
months ended June 30, 2022 and September 30, 2022, which the Company filed on May 22 and 24, 2023, respectively, the Company’s
Quarterly Report on Form 10-Q for the three months ended March 31, 2023, and this Report.
Nasdaq
Listing
On
March 23, 2023, the Company requested a hearing before the Nasdaq Hearings Panel (the “Panel”) to appeal a determination
by the Listing Qualifications department (the “Staff”) of Nasdaq dated February 23, 2023, to delist the Company’s securities
from Nasdaq. At the hearing before the Panel on April 24, 2023, the Company presented its plan to complete the restatement of its financial
statements for the fiscal year ended December 31, 2021, and the subsequent quarter ended March 31, 2022, and to file the amended periodic
reports and all subsequent required filings with the SEC. The Company requested the continued listing of its securities on Nasdaq pending
the completion of its compliance plan.
By
letter dated May 8, 2023, the Panel granted the Company’s request for continued listing, on an interim basis, subject to the Company
submitting financial projections for fiscal 2023 and filing the restated financial statements for the fiscal year ended December 31,
2021, and quarter ended March 31, 2022, with the SEC by May 15, 2023. The Company satisfied these conditions and the Panel indicated
that it would review the filings, along with the updated projections, and thereafter determine whether to afford the Company additional
time to complete the compliance plan presented at the hearing.
By
letter dated May 24, 2023, the Panel notified the Company that it had determined to suspend trading and otherwise move to delist the
Company’s securities from Nasdaq effective with the open of the market on May 26, 2023. The Company’s securities were suspended
from trading on that date but the securities were not delisted because the Company thereafter requested that the Panel reconsider its
determination to delist the Company’s securities from Nasdaq based upon what the Company believed to be mistakes of material fact
upon which the Panel had based its decision.
On
June 8, 2023, the Panel notified the Company that it had determined to reverse its prior decision and grant the Company’s request
for continued listing subject to the Company’s timely compliance with a number of conditions ultimately expiring on August 17,
2023, on which date the Company must satisfy all applicable criteria for continued listing on Nasdaq (the “June 8th
Decision”). As a result of the foregoing, the suspension from trading ceased and the Company’s securities were reinstated
for trading on Nasdaq effective with the open of the market on June 15, 2023. See “Risk Factors - Risks Related to Our Common
Stock and Warrants - We are not currently in compliance with the continued listing standards of Nasdaq and may not be able to regain
compliance with Nasdaq’s continued listing standards in the future” for more information.
Loan
Agreement with Woodford
On
December 7, 2022, the Company entered into a loan agreement (the “Loan Agreement”) with Woodford Eurasia Assets, Ltd. (“Woodford”),
pursuant to which Woodford agreed to provide the Company with up to $52.5 million, subject to certain conditions and requirements, of
which $300 thousand was received by December 31, 2022 and is owed pursuant to the terms of the Loan Agreement. Amounts borrowed accrue
interest at the rate of 12% per annum (or 22% per annum upon the occurrence of an event of default) and are due within 12 months of the
date of each loan. Amounts borrowed can be repaid at any time without penalty.
Amounts
borrowed pursuant to the Loan Agreement are convertible, at Woodford’s option, into shares of the Company’s common stock,
par value $0.001 per share (the “common stock”), beginning 60 days after the first loan date at the rate of 80% of the lowest
publicly available price per share of common stock within 10 business days of the date of the Loan Agreement (which was equal to $0.28
per share), subject to a 4.99% beneficial ownership limitation and a separate limitation preventing Woodford from holding more than 19.99%
of the issued and outstanding common stock of the Company, without the Company obtaining shareholder approval for such issuance.
Conditions
to the Loan Agreement included the resignation of four prior members of the Board (Lisa Borders, Steven M. Cohen, Lawrence Anthony DiMatteo
and William Thompson, all of whom resigned from the Board in September 2022), and the appointment of two new independent directors. Subsequent
loans under the Loan Agreement also require the Company to comply with all listing requirements, unless waived by Woodford. The Loan
Agreement also allows Woodford to nominate another director to the Board of Directors, in the event any independent member of the Board
of Directors resigns.
Proceeds
of the loans can only be used by to restart the Company’s operations and for general corporate purposes agreed to by Woodford.
The
Loan Agreement includes confidentiality obligations, representations, warranties, covenants, and events of default, which are customary
for a transaction of this size and nature. Included in the Loan Agreement are covenants prohibiting us from (a) making any loan in excess
of $1 million or obtaining any loan in amount exceeding $1 million without the consent of Woodford, which consent may not be unreasonably
withheld; (b) selling more than $1 million in assets; (c) maintaining less than enough assets to perform our obligations under the Loan
Agreement; (d) encumbering any assets, except in the normal course of business, and not in an amount to exceed $1 million; (e) amending
or restating our governing documents; (f) declaring or paying any dividend; (g) issuing any shares which negatively affects Woodford;
and (h) repurchasing any shares.
The
Company also agreed to grant warrants to purchase shares of common stock to Woodford (the “Woodford Warrants”) in an amount
equal to 15% of the Company’s 50,925,271 issued and outstanding shares of common stock. Each Woodford Warrant has an exercise price
equal to the average of the closing price of the Company’s common stock for each of the ten days prior to the first amount being
debited from the bank account of Woodford, which equates to an exercise price of $0.28 per share. In the event the Company fails to repay
the amounts borrowed when due or Woodford fails to convert the amount owed into shares, the exercise price of the warrants may be offset
by amounts owed to Woodford, and in such case, the exercise price of the warrants will be subject to a further 25% discount (i.e., will
equal $0.21 per share).
In
connection with our entry into the Loan Agreement, the Company also entered into a Loan Agreement Deed, Debenture Deed and Securitization,
with Woodford (the “Security Agreement”), which provides Woodford with a first floating charge security interest over all
present and future assets of the Company in order to secure the repayment of amounts owed under the Loan Agreement. The floating charge
may be converted into a fixed charge upon the occurrence of certain events including: an event of default; if Woodford reasonably believes
that any secured property may be in jeopardy or danger of being seized or sold; or if Woodford reasonably considers that it is desirable
to protect its security interest. The floating charge may be automatically converted into a fixed charge upon the occurrence of certain
other events. The Security Agreement prohibits the Company from providing any other security interest over our assets, even if secondary
to Woodford, while the amounts borrowed under the Loan Agreement remain unpaid.
On June 12, 2023, the Company entered into an amendment of its Loan Agreement
with Woodford (the “Loan Agreement Amendment”). The Loan Agreement Amendment provides that Woodford shall henceforth be able
to convert, in whole or in part, the outstanding balance of its loan into the conversion shares at a conversion price that represents
a further 25% discount to the original conversion price of 20%. All other terms and conditions of securitization remain in full force
and effect.
Operations
Prior to Operational Cessation
Prior
to the Operational Cessation, the Company was a provider of domestic and international lottery products and services. As an independent
third-party lottery game service, we offered a platform that we developed and operated to enable the remote purchase of legally sanctioned
lottery games in the U.S. and abroad (the “Platform”). Our revenue generating activities included (i) offering the Platform
via our Lottery.com app and our websites to users located in the U.S. and international jurisdictions where the sale of lottery games
was legal and our services were enabled for the remote purchase of legally sanctioned lottery games (our “B2C Platform”);
(ii) offering an internally developed, created and operated business-to-business application programming interface (“API”)
of the Platform, which enabled our commercial partners, in permitted U.S. and international jurisdictions, to purchase certain legally
operated lottery games from us and to resell them to users located within their respective jurisdictions (“B2B API”); and
(iii) delivering global lottery data, such as winning numbers and results, and subscriptions to data sets of our proprietary, anonymized
transaction data pursuant to multi-year contracts to commercial digital subscribers (“Data Service”).
Mobile
Lottery Game Platform Services
Both
our B2C Platform and our B2B API provided users with the ability to purchase legally sanctioned draw lottery games via a mobile device
or computer, securely maintain their acquired lottery game, automatically redeem a winning lottery game, as applicable, and receive support,
if required, for the claims and redemption process. Our registration and user interfaces were designed to be easy to use, provide for
the creation of an account and purchase of a lottery game with minimum friction and without the creation of a mobile wallet or requirement
to pre-load minimum funds and - importantly - to provide instant confirmation of the user’s lottery game numbers, whether selected
at random or picked by the user. Users of our B2C Platform services paid a service fee and, in certain non-U.S. jurisdictions, a mark-up
on the purchase price. Prior to the Operational Cessation, we generated revenue from this service fee and mark-up. Our B2B API Platform
resumed limited operations in April 2023. As of the date of this Report, our B2C Platform is not currently operational. We anticipate
that our B2C Platform will become operational by the end of 2023.
The
WinTogether Platform
Prior
to the Operational Cessation, we operated and administered of all sweepstakes offered by WinTogether, a registered 501(c)(3) charitable
organization (“WinTogether”), which was formed in April 2020 to support charitable, educational, and scientific causes. In
consideration of our operation of the WinTogether platform and administration of the sweepstakes, we received a percentage of the gross
donations to a campaign, from which we paid certain dividends and all administration costs.
The
WinTogether platform continued operating after the Operational Cessation, until all sweepstakes campaigns were completed and all prizes
awarded. On March 29, 2023, the board of directors of WinTogether voted to suspend its relationship with the Company.
Current
Operations
Despite
the Operational Cessation, certain of the Company’s wholly-owned subsidiaries have continued to operate under the direction of
the leadership teams that were in place prior to the Company’s acquisition of such companies. While the operational activities
of these subsidiaries vary, from the Operational Cessation through the date of this Report, each of TinBu, Aganar and JuegaLotto has
decreased its expenses and has had its revenue remain consistent or decrease slightly from pre-Operational Cessation levels.
Data
Services
In
2018, we acquired TinBu, LLC (“TinBu”), a digital publisher and provider of lottery data results, jackpots, results, and
other data, as a wholly-owned subsidiary. Through TinBu, our Data Service delivers daily results of over 800 domestic and international
lottery games from more than 40 countries, including the U.S., Canada, and the United Kingdom, to over 400 digital publishers and media
organizations. See “Item 1A. Risk Factors – We are party to pending litigation and investigations in various jurisdictions
and with various plaintiffs and we may be subject to future litigation or investigations in the operation of our business. An adverse
outcome in one or more proceedings could adversely affect our business, financial condition, and results of operations” for
more information about our relationship with Tinbu.
Our
technology pulls real time primary source data, and, in some instances, we acquire data from dedicated data feeds from the lottery authorities.
Our data is constantly monitored to ensure accuracy and timely delivery. We are not required to obtain licenses or approvals from the
lottery authorities to pull this primary source data or to acquire the data from such dedicated feeds. Commercial acquirers of our Data
Service pay a subscription for access to the Data Service and, for acquisition of certain large data sets, an additional per record fee.
We
additionally enter into multi-year contracts pursuant to which we sell proprietary, anonymized transaction data pursuant to multi-year
agreements and in accordance with our Terms of Service in consideration of a fee and in other instances provide the Data Service within
a bundle of provided services.
Aganar
and JuegaLotto
On
June 30, 2021, we acquired 100% of the equity of Global Gaming Enterprises, Inc., a Delaware corporation (“Global Gaming”),
which holds 80% of the equity of each of Medios Electronicos y de Comunicacion, S.A.P.I de C.V. (“Aganar”) and JuegaLotto,
S.A. de C.V. (“JuegaLotto”). JuegaLotto is federally licensed by the Mexican regulatory authorities with jurisdiction over
the ability to commercialize lottery games in Mexico through an authorized federal gaming portal and to commercialize games of chance
in other countries throughout Latin America. Aganar has been operating in the licensed Online Lottery market in Mexico since 2007 and
has certain rights to sell Mexican National Lottery draw games, instant win tickets, and other games of chance online with access to
a federally approved online casino and sportsbook gaming license and additionally issues a proprietary scratch lottery game in Mexico
under the brand name Capalli. See “Item 1A. Risk Factors – We need additional capital to, among other things, support and restart
our operations, re-hire employees and pay our expenses. Such capital may not be available on commercially acceptable terms, if at all.
If we do not receive the additional capital, we may be forced to curtail or abandon our plans to recommence our operations and we may
need to permanently cease our operations” for additional information.
Sports.com
In
December 2021, we finalized the acquisition of the domain name https://sports.com and on November 15, 2022, we formed a wholly-owned
subsidiary called Sports.com, Inc., a Texas corporation (“Sports.com”). Subsequently, Sports.com announced a partnership
with the Saudi Motorsports Company, which enabled the Company to roll out the Sports.com brand at the IFA World Cup decider at the end
of November 2022. In December 2022, Sports.com signed an agreement with Data Sports Group, GmbH (“DSG”), which provides
Sports.com the exclusive North American distribution rights for sports data products offered and maintained by DSG (the “DSG Data”).
The DSG Data is being sold through the same sales resources and sales channels as the lottery data offered by TinBu.
Plans
for Recommencement of Company Operations
As
noted above, since the Operational Cessation, the Company has had minimal day-to-day operations and has primarily focused its operations
on restarting certain of its core businesses. The Company has developed a three phase plan to recommence its operations, which plan is
outlined below.
Phase
1 - Relaunch B2B API Platform. During the Operational Cessation, the Company maintained positive relationships with its ticket-printing
and courier partners, as well as several distribution partners that have been found to be in compliance with local, state, and federal
rules related to ticket procurement and distribution. These partners have implemented the Lottery.com API and have advised the Company
that they expect to be ready to offer lottery games to their customers through their sales channels when the Company resumes operations.
As such, the Company believes that it has sufficient demand to resume operation of its B2B API platform operations, assuming it is able
to maintain the core employee team to manage the lottery ticket fulfillment process and access sufficient capital to relaunch Project
Nexus, which was designed to, among other things, handle high levels of user traffic and transaction volume, while maintaining expediency,
security, and reliability in the administrative and back-office functionality required by the B2B API. Our B2B API Platform resumed limited
operations in April 2023.
Phase
2 - Resume B2C Platform Operations. The Company believes that it will be in a position to relaunch its B2C Platform by the end of
2023. As of the date of this Report, the Company expects that it will initially relaunch its B2C Platform to customers in Texas for a
period of time before rolling it out to other jurisdictions. If the Texas Bill (as defined below) is enacted into law as drafted, the
Company may elect to accelerate the relaunch of its Platform to customers in another state. The Company plans to limit the rollout in
order to give it additional time to properly vet and confirm compliance with local, state and federal rules related to ticket procurement
and distribution. For more information, see “Item 1A. Risk Factors - Regulatory and Compliance Risks - A jurisdiction may enact,
amend, or reinterpret laws and regulations governing our operations in ways that impair our revenues, cause us to incur additional legal
and compliance costs and other operating expenses, or are otherwise not favorable to our existing operations or planned growth, all of
which may have a material adverse effect on us or our results of operations, cash flow, or financial condition.” The Company
has also maintained various pre-paid media credits that it expects to use to launch and maintain promotional campaigns geared towards
encouraging prior customers to return to the Platform and to acquire new customers.
Phase
3 - Restore Other Business Lines and Projects. Assuming the success of Phase 1 and Phase 2, the Company expects to restore other
products it previously offered, such as supplying lottery tickets to consumers in approved domestic jurisdictions, partnering with licensed
providers in international jurisdictions to supply legitimate domestic lottery games, and reviving other products and services that were
under development when the Operational Cessation occurred.
As
of the date of this Report, the current estimated cash balance of the Company and subsidiaries is approximately $102,766. The Company
believes that this cash on hand, along with future borrowings, will be sufficient for the Company to pay its service providers in connection
with the filings of its deficient periodic reports, including this Report and the Company’s Quarterly Report on Form 10-Q for the
three months ended March 31, 2023.
As
of the date of this Report, our common stock and warrants are traded on The Nasdaq Stock Market LLC (“Nasdaq”) under the
ticker symbols “LTRY” and “LTRYW,” respectively. As of the date of this Report, we are not in compliance with
Nasdaq’s continued listing requirements (the “Listing Rules”), as discussed in greater detail below under “Risk
Factors - Risks Related to Our Common Stock and Warrants - We are not currently in compliance with the continued listing standards of
Nasdaq and may not be able to regain compliance with Nasdaq’s continued listing standards in the future,” and have been
granted a limited exception from Nasdaq to continue the listing of our securities. Additionally, under its new management, the Company
continues to work to improve its disclosure and reporting controls, and plans to overhaul its systems of internal control over financial
reporting and invest in additional legal, accounting, and financial resources.
Even
if the Company’s three phase plan to recommence its operations is successful, there can be no assurance that the Company will be
able to regain compliance with the applicable Listing Rules, or that the hearings panel will continue to stay the delisting of the Company’s
securities from Nasdaq. If the Company’s securities are delisted from Nasdaq, it could be more difficult to buy or sell the Company’s
common stock and warrants or to obtain accurate quotations, and the price of the Company’s common stock and warrants could suffer
a material decline. Delisting could also impair the Company’s ability to raise additional capital needed to funds its operations
and/or trigger defaults and penalties under outstanding agreements or securities of the Company.
There
can be no assurance that we will have sufficient capital to support our operations and pay expenses, repay our debt, or that additional
funds will be available on favorable terms, if at all. We may not be able to restart our operations and/or generate sufficient funding
to support such operations in the future. The Company’s ability to continue its current operations, prepare and refile deficient
and restated reports, and restart its prior operations, is dependent upon obtaining new financing. Future financing options available
to the Company include equity financings, debt financings or other capital sources, including collaborations with other companies or
other strategic transactions. Equity financings may include sales of common stock. Such financing may not be available on terms favorable
to the Company or at all. The terms of any financing may adversely affect the holdings or rights of the Company’s stockholders
and may cause significant dilution to existing stockholders. There can be no assurance that the Company will be successful in obtaining
sufficient funding on terms acceptable to the Company, if at all, which would have a material adverse effect on its business, financial
condition and results of operations, and it could ultimately be forced to discontinue its operations and liquidate. These matters, when
considered in the aggregate, raise substantial doubt about the Company’s ability to continue as a going concern for a reasonable
period of time, which is defined as within one year after the date that the financial statements are issued. The accompanying financial
statements do not contain any adjustments to reflect the possible future effects on the classification of assets or the amounts and classification
of liabilities that might result from the outcome of this uncertainty. For more information, see the risk factors in Item 1A of this
Report under the heading “Risks Relating to the Internal Investigation, Restatement of our Consolidated Financial Statements,
Our Ability to Continue as a Going Concern, Our Internal Controls and Related Matters.”
Regulation
and Compliance
We
are subject to a variety of laws in the U.S. and abroad that affect our business, including state, territorial, and federal laws regarding
lotteries, gaming, sweepstakes, consumer protection, electronic marketing, data protection and privacy, competition, taxation, intellectual
property, export, and national security, all of which are continuously evolving. The scope and interpretation of the laws that are or
may be applicable to us are often evolving or new and uncertain and may conflict with each other, particularly those governing our international
operations.
Lottery
and gaming laws are generally based upon declarations of public policy designed to protect consumers from fraud and other misdeeds and
the viability and integrity of the games, while raising revenues for the particular country, state, or other authorizing jurisdiction.
To accomplish these goals, stringent laws and regulations may be established to ensure that participants in the industry meet certain
standards of character and responsibility, which may require participants to:
● ensure that games are conducted fairly and honestly;
● establish procedures designed to prevent cheating and fraudulent practices;
● establish and maintain anti-money laundering practices and procedures;
● establish and maintain responsible accounting practices and procedures;
● file periodic reports with regulators;
● enforce minimum age requirements.
State
and federal laws in the U.S. govern and, in some cases, limit our business practices. For example, the Interstate Wagering Amendment
to 18 U.S.C. § 1301 limits our ability to purchase lottery games for a user located in one state from a lottery authority located
in another state, except under certain limited circumstances, such as where the lottery authorities in the respective states allow the
sales. Therefore, when such offerings are operational, for our users located within the U.S., we only purchase lottery games for users
geolocated to be physically situated at the time within the U.S. state or jurisdiction where the lottery game they are purchasing is
being conducted, unless an exception were to be authorized by the applicable lottery authorities. For more information, see “Item
1A. Risk Factors - Regulatory and Compliance Risks - If the Interstate Wagering Amendment is interpreted or applied to prohibit transmissions
to foreign countries, it could have a negative impact on our business, financial condition, and results of operations.”
In
addition, the Wire Act provides that anyone engaged in the business of betting or wagering that knowingly uses a wire communication facility
for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on
any sporting event or contest, or for the transmission of a wire communication that entitles the recipient to receive money or credit
as a result of bets or wagers, or for information assisting in the placing of bets or wagers, may be fined or imprisoned, or both. The
Wire Act provides, however, that it shall not be construed to prevent the transmission in interstate or foreign commerce of information
for use in news reporting of sporting events or contests, or for the transmission of information assisting in the placing of bets or
wagers on a sporting event or contest from a state or foreign country where betting on that sporting event or contest is legal into a
state or foreign country in which such betting is legal. In late 2011, the Office of Legal Counsel (the “OLC”) in the U.S.
Department of Justice (the “DOJ”) issued an opinion that concluded the conduct prohibited by the Wire Act was limited to
sports gambling; however, in January 2019, the OLC issued a new opinion (the “2019 Opinion”) that concluded that the restrictions
in the Wire Act on the transmission in interstate or foreign commerce of bets and wagers was not limited to sports gambling but applied
to all bets and wagers, including those involving state lotteries. Reinterpretation of the federal Wire Act by the OLC threatened certain
online lottery sales, leading to litigation in which the First Circuit Court of Appeals (the “First Circuit”) determined
that the Wire Act applies only to interstate wire communications related to sporting events or contests and not lottery games. Finding
that the declaratory judgment was an adequate remedy at law, however, the First Circuit declined to set aside the 2019 Opinion under
the Administrative Procedure Act. In addition to the First Circuit’s decision, the U.S. Circuit Court of Appeals for the Fifth
Circuit (the “Fifth Circuit”) has previously held the Wire Act prohibitions apply only to sports gambling. Because many of
the Company’s operations occur outside the jurisdictions of the First Circuit and Fifth Circuit, and because the First Circuit
did not set aside the 2019 Opinion, we are still monitoring the potential impact of the 2019 Opinion on our business. For more information,
see “Item 1A. Risk Factors - Regulatory and Compliance Risks - If there is a final determination on the applicability of the
Wire Act to our operations and it is determined or codified that the Wire Act extends to transmission of lottery games in interstate
or foreign commerce, certain of our operations that are not currently restricted by statute or practice to a state’s territorial
boundaries may be negatively impacted or eliminated, which may have a material adverse effect on our business, financial conditions,
and results of operations.”
Some
states prohibit the use of courier services and the sale of online lottery tickets, while others limit the charges that we can impose
and collect. When such offerings are operational, we only purchase lottery games on behalf of our users and customers where our services
are permitted and in accordance with applicable laws. The scope and interpretation of the laws that are or may be applicable to our services
and the fees we charge are subject to interpretation and may change. For example, in April 2023, the Texas State Senate passed Senate
Bill 1820 (the “Texas Bill”), which would, among other things, prohibit online lottery gaming and the use of courier services
in Texas, if enacted. As of the date of this Report, the Texas Bill is under review of the Texas State House of Representatives. If the
Texas Bill is enacted into law as drafted, the new rules would be implemented by January 1, 2024.
Our
compliance with local, territorial and federal laws is based on our interpretation of existing state and federal laws regarding lottery
services such as ours. We have obtained legal advice and notified certain lottery authorities in U.S. jurisdictions where we do business
of the services that we offer, but in most cases, we have not received definitive determinations of the laws applicable to our services.
There is a risk that existing or future laws in the states and jurisdictions in which we operate may be interpreted in a manner that
is not consistent with our business model. Future laws that permit certain lottery services may be accompanied by restrictions or taxes
that make it impractical or less feasible to operate in certain jurisdictions. For more information, see “Item 1A. Risk Factors
- Regulatory and Compliance Risks - A jurisdiction may enact, amend, or reinterpret laws and regulations governing our operations in
ways that impair our revenues, cause us to incur additional legal and compliance costs and other operating expenses, or are otherwise
not favorable to our existing operations or planned growth, all of which may have a material adverse effect on us or our results of operations,
cash flow, or financial condition.”
Other
laws and regulations may be adopted or construed to apply to us that could restrict our business model, including privacy, taxation,
marketing, anti-money laundering, anti-corruption, copyright, currency exchange, export, and antitrust laws, as well as laws governing
public companies.
The
growth of electronic commerce may prompt calls for stronger consumer protection laws that may impose additional burdens on companies
such as ours conducting business through the Internet and mobile devices. It is likely that scrutiny and regulation of our industry may
increase, and we will be required to devote additional resources to compliance with applicable regulations. While we believe that we
are currently in compliance in all material respects with all applicable laws and regulatory requirements, we cannot assure that our
activities or our users’ activities will not become the subject of any regulatory or law enforcement investigation, proceeding,
or other governmental action or that any such investigation, proceeding, or action, as the case may be, would not have a materially adverse
impact on us or our business, financial condition or results of operations.
For
more information, see “Item 1A. Risk Factors - Regulatory and Compliance Risks - Our business model and the conduct of our operations
may have to vary in each U.S. jurisdiction where we do business to address the unique features of applicable law to ensure we remain
in compliance with that jurisdiction’s laws. Our failure to adequately do so may have an adverse impact on our business, financial
condition, and results of operations.”
Licensing
We
currently hold a license issued by the Texas Lottery Commission to conduct the retail sale of lottery tickets in the State of Texas.
We may determine or be required to secure additional licenses from other regulatory authorities with jurisdiction over our operations
in new markets in which we contemplate expansion. Such licensure may impose additional obligations on us and our operations, which may
include continuous disclosure to and investigation by the applicable regulatory authority into the financial stability, integrity, and
business experience of our company, its affiliates, and their respective significant stockholders, directors, officers, and key employees.
In markets in which we have not previously operated or in newly regulated markets, licensing regimes may impose licensing requirements
or conditions with which we have not previously been required to comply, which may include locating technical infrastructure within the
relevant territory, establishing real-time data interfaces with the regulatory authority, implementing consumer protection and privacy
measures, or additional approvals or certifications of our technology, all of which may present operational challenges and material costs.
Certain stockholders may be required to be licensed.
To
the extent that any stockholder, director, officer, or key employee is required to submit to required background checks and provide disclosure,
and such individual fails to do so or they or we do not successfully do so, this may jeopardize the grant of a license, provide grounds
for termination of an existing license, or result in the imposition of penalties. Generally, any person or entity who fails or refuses
to apply for a governmental license, finding of suitability, registration, permit, or approvals within the prescribed period after being
advised by a competent authority that they are required to do so may be denied or found unsuitable, as applicable, which may result in
our determining or being required to sever our relationship with such person or entity. Further, we may be subject to disciplinary action
or suffer revocation of licensure if, following notification that a person or entity is disqualified or unsuitable, we (a) pay them any
dividend or interest upon our shares; (b) allow them to exercise, directly or indirectly, any voting right conferred through the shares
they hold; (c) pay them remuneration in any form for services rendered or otherwise; or (d) if required, fail to pursue all lawful efforts
to require them to relinquish their shares.
Furthermore,
our Charter provides that any of our securities held by a person or entity that is disqualified or unsuitable, as such terms are defined
in our Charter, are subject to redemption by us as and to the extent required by a regulatory authority or deemed necessary or advisable
by our Board in its sole and absolute discretion. If a gaming authority requires the Company, or our Board deems it necessary or advisable,
to cause any such securities be subject to redemption, we will deliver a redemption notice (as described in the Charter) to such person
or entity or its affiliate(s) (as applicable) and we will purchase the number and type of securities specified in the redemption notice
for the redemption price determined in accordance with the Charter and set forth in the redemption notice.
Data
Protection and Privacy
Because
we handle, collect, store, receive, transmit, and otherwise process certain personal information of our users, customers, and employees,
we are also subject to federal, state, and international laws related to the privacy and protection of such data. Regulations such as
the General Data Protection Regulation of the European Union and the California Consumer Privacy Act could affect our business, and the
potential impact is still being determined. Other states are considering similar laws, which could impact our business.
Responsible
and Underage Gaming
We
are committed to compliance with the underage and responsible gambling requirements set forth in the domestic and international statutes
and regulations governing our operations. We take our corporate responsibility to our users and the regulators with authority over our
business very seriously, and we are focused on maintaining a safe and responsible gaming environment. We support and are members of the
National Council on Problem Gaming, whose mission is to lead state and national stakeholders in the development of comprehensive policy
and programs for all those affected by problem gaming. We continue to evaluate and develop our technology to meet the statutory requirements
regarding responsible gaming and self-exclusion, as well as our own self-imposed objectives regarding corporate social responsibility.
All
of the U.S. jurisdictions and most of the international jurisdictions in which we operate prohibit sales of lottery tickets to persons
under 18 years of age. We have instituted know-your-customer requirements to aid our efforts in identifying minors and preventing them
from using our services.
Many
jurisdictions, especially international jurisdictions, are imposing more stringent rules with regard to underage and responsible gambling.
This trend could continue to spread, and both U.S. and international jurisdictions may strengthen underage and responsible gambling requirements.
Compliance
We
intend to continue to develop a comprehensive internal compliance program, which will ensure compliance with legal requirements imposed
in connection with our activities and with legal requirements generally applicable to all publicly traded companies. While we are firmly
committed to full compliance with all applicable laws, we cannot ensure that our compliance program will prevent the violation of one
or more laws or regulations, or that a violation by us, an employee, a customer or other third-party will not result in enforcement action,
the imposition of a monetary fine or suspension or revocation of one or more of our licenses, which could have a material adverse effect
on us or on our results of operations, cash flow, or financial condition.
Because
we do business in international jurisdictions, our operations are subject to anti-corruption laws and regulations, such as the U.S. Foreign
Corrupt Practices Act of 1977, the U.K. Bribery Act of 2010 and other anti-corruption laws that may apply where we operate. As we continue
to expand globally, we are likely to be subject to additional laws and restrictions, which increases the risk that we will inadvertently
violate one of those laws or restrictions.
Governance
Changes
All
members of the Board and all principal executive officers who served in such positions as of the end of the prior year and at the time
of the Operational Cessation, have resigned from such positions.
Employees
As
of the date of this Report, the Company has 10 non-furloughed employees who remain active in the efforts to restore Company operations.
Intellectual
Property
We
rely on a combination of trademark, copyright, and trade secret protection laws in the U.S. and other jurisdictions, as well as confidentiality
procedures and contractual provisions, to protect our intellectual property and our brand.
We
have been using the LOTTERY.COM trademark since 2017; in February 2021, the LOTTERY.COM logo was registered on the Supplemental Register
of the U.S. Patent and Trademark Office. As of December 31, 2022, the registration of our LOTTERY.COM, AUTOLOTTO and SPORTS.COM word
marks and SPORTS.COM logo were pending with the U.S. Patent and Trademark Office. In March 2023, the U.S. Patent and Trademark Office denied the registration
of the SPORTS.COM word mark and the appeal period has expired. The registration of the SPORTS.COM logo has also been denied and the Company
is currently considering whether to appeal such denial. We are also using and/or have common-law trademark
rights in the trademarks AUTOLOTTO, SPORTS.COM, and “TAP, TAP, TICKET.” We will continue to evaluate the filing of trademark applications in
the U.S. and internationally, as appropriate.
While
we did not own any patent applications or issued patents as of December 31, 2022, we will continue to evaluate our technology to determine
whether it is appropriate to file patent applications in the U.S. or internationally.
We
seek to protect our intellectual property rights by implementing policies that require our employees and independent contractors involved
in development of intellectual property to enter into agreements acknowledging that all intellectual property generated or conceived
by them on our behalf are our property and assigning to us any rights that they may claim or otherwise have in those works or property,