TOGI 8-K
TurnOnGreen, Inc. (TOGI)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________________________________
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
___________________________________________________________________
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation or organization) |
(Commission File Number) | (I.R.S. Employer Identification No.) |
(Address of principal executive offices) (Zip Code)
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act: None.
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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.
| ITEM 1.01 | ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT |
On September 8, 2022, Imperalis Holding Corp., a Nevada corporation (the “Company”) entered into a parent/subsidiary short form merger with its wholly owned subsidiary, TurnOnGreen, Inc., a Nevada corporation (“TOG”), pursuant to an Agreement and Plan of Merger (the “Merger Agreement”). In accordance with the Merger Agreement, TOG merged with and into the Company, with the Company as the surviving corporation (the “Merger”), pursuant to Section 92A.120 and 92A.180 of the Nevada Revised Statues. As a result of the merger, IMHC acquired two operating subsidiaries from TOG, Digital Power Corporation and TOG Technologies, Inc.
To effectuate the Merger, the Company filed the Articles of Merger (the “Articles of Merger”) with the Secretary of State of the State of Nevada on September 8, 2022.
The Merger does not affect the rights of security holders of the Company. The Company’s common stock will continue to be quoted on the OTC Pink Market under the current symbol “IMHC”.
The Merger did not affect any of the Company’s material contracts with any third parties, and the Company’s rights and obligations under such material contractual arrangements continue to be rights and obligations of the Company after the Merger. The Merger did not result in any change in headquarters, business, jobs, management, location of any of the offices or facilities, number of employees, assets, liabilities or net worth of the Company. There were no changes to the Company’s bylaws or articles of incorporation.
The foregoing descriptions of the Merger Agreement and the Articles of Merger are qualified in their entirety by reference to the full text of the Merger Agreement and the Articles of Merger, copies of which are filed as Exhibits 2.1 and 3.1, respectively, to this Current Report on Form 8-K and incorporated herein by reference.
| ITEM 9.01 | FINANCIAL STATEMENTS AND EXHIBITS |
| (d) | Exhibits: |
| Exhibit No. | Description | |
| 2.1 | Agreement and Plan of Merger. | |
| 3.1 | Articles of Merger, as filed with the Secretary of State of the State of Nevada on September 8, 2022. | |
| 101 | Pursuant to Rule 406 of Regulation S-T, the cover page is formatted in Inline XBRL (Inline eXtensible Business Reporting Language). | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document and included in Exhibit 101). |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| IMPERALIS HOLDING CORP. | ||
| Dated: September 14, 2022 | /s/ Amos Kohn | |
|
Amos Kohn Chief Executive Officer |
||
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made as of September 7, 2022, by and between Imperalis Holding Corp., a Nevada corporation (“IMHC” or the “Parent”) and TurnOnGreen, Inc., a Nevada corporation (“TOGI” or the “Subsidiary”). IMHC and TOGI are collectively referred to as the “Constituent Corporations.”
RECITALS:
WHEREAS, each of the Constituent Corporations is a corporation duly organized and existing under the laws of the State of Nevada;
WHEREAS, the Subsidiary has an authorized capitalization consisting of (i) four hundred million (400,000,000) shares of Class A Common Stock, par value $0.001 per share (the “Common Stock”), 1,000 of which are issued and outstanding, (ii) fifty million (50,000,000) shares of Class B Common Stock, par value $0.001 per share (the “Class B Common Stock”), none of which is issued or outstanding, and (iii) fifty million (50,000,000) shares of Preferred Stock, par value $0.001 per share, none of which is issued or outstanding;
WHEREAS, the Parent owns 100% of the outstanding shares of Common Stock;
WHEREAS, the Board of Directors of each of IMHC and TOGI has determined that it is desirable and in the best interests of the Constituent Corporations for TOGI to merge with and into IMHC (the “Merger”), pursuant to Sections 92A.120 and 92A.180 of the Nevada Revised Statutes (the “NRS”), on the terms and subject to the conditions set forth herein;
WHEREAS, the Merger is intended to qualify as a reorganization pursuant to Section 368 of the Internal Revenue Code, as amended (the “Code”).
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
1.1 At the Effective Time (as defined below), TOGI shall be merged with and into IMHC in the Merger. Upon effectiveness of the Merger, the separate existence of TOGI shall cease and IMHC shall continue as the surviving corporation, unaffected and unimpaired by the Merger, with all the rights, privileges, immunities and powers and subject to all the duties and liabilities of a corporation organized under the NRS.
1.2 The Merger shall become effective in accordance with NRS 92A.240 at 12:01 am Eastern Time on September 8, 2022 (the “Effective Time”), pursuant to the Articles of Merger in the form attached hereto as Exhibit A (the “Articles”), filed with the Secretary of State of the State of Nevada.
1.3 At the Effective Time, the separate existence of TOGI shall cease, and IMHC shall: (i) continue to possess all of its assets, rights, powers and property as constituted immediately prior to the Effective Time, (ii) be subject to all actions previously taken by its and TOGI’s Boards of Directors, (iii) succeed, without other transfer, to all of the assets, rights, powers and property of TOGI in the manner as more fully set forth in Section 3 of NRS 92A.250, (iv) continue to be subject to all of its debts, liabilities and obligations as constituted immediately prior to the Effective Time, and (v) succeed, without other transfer, to all of the debts, liabilities and obligations of TOGI in the same manner as if IMHC had itself incurred them, all as more fully provided under the applicable provisions of the NRS.
ARTICLE II
2.1 The Articles of Incorporation of IMHC, as amended and in effect immediately prior to the Merger shall be and remain the Articles of Incorporation of IMHC.
2.2 The Bylaws of IMHC in effect immediately prior to the Effective Time shall be and remain the Bylaws of IMHC until the same shall be altered, amended or repealed.
2.3 The directors and officers of IMHC in office at the Effective Time shall continue in office and shall constitute the directors and officers of IMHC for the term elected until their respective successors shall be elected or appointed and shall have qualified.
ARTICLE III
The terms and conditions of the Merger with respect to each issued and outstanding shares of capital stock of the Constituent Corporations shall be as follows:
3.1 Each issued and outstanding share of capital stock of the Parent Corporation immediately prior to the Effective Time shall remain the issued and outstanding shares of the Parent Corporation.
3.2 Each issued and outstanding share of capital stock of the Subsidiary Corporation held by the Parent Corporation immediately prior to the Effective Time shall be cancelled and extinguished without the payment of any consideration therefor.
ARTICLE IV
Each of the Constituent Corporations shall take or cause to be taken all actions or do or cause to be done all things necessary, proper or advisable under the laws of the State of Nevada to consummate and make effective the Merger.
ARTICLE V
This Agreement shall be binding upon and inure to the benefit of all of the parties hereto and their respective successors in interest.
ARTICLE VI
Notwithstanding anything herein to the contrary, this Agreement may be terminated and abandoned by the Board of Directors of IMHC at any time prior to the date of filing the Articles with the Secretary of State of the State of Nevada.
ARTICLE VII
The Board of Directors of IMHC may amend modify and supplement this Agreement in such a manner as it may determine at any time.
ARTICLE VIII
This Agreement may be executed by the parties hereto in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Executed counterparts to this Agreement delivered by facsimile, .pdf or other similar forms of electronic transmission shall be deemed effective as original signatures hereto.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned have executed this Agreement and Plan of Merger as of the date first written above.
| IMHC: | |||
| IMPERALIS HOLDING CORP. | |||
| By: | |||
| Name: David Katzoff | |||
| Title: Chief Financial Officer | |||
| TOGI: | |||
| TURNONGREEN, INC. | |||
| By: | |||
| Name: Amos Kohn | |||
| Title: Chief Executive Officer | |||
Exhibit 3.1
Articles of Conversion/Exchange/Merger NRS 92A.200 and 92A.205 This filing completes the following: Conversion Exchange Merger 1. Entity Information: (Constituent, Acquired or Merging) Entity Name: TurnOnGreen, Inc. Jurisdiction: Nevada Entity Type*: Domestic Corporation (78) If more than one entity being acquired or merging please attach additional page. 2. Entity Information: (Resulting, Acquiring or Surviving) Entity Name: IMPERALIS HOLDING CORP. Jurisdiction: Nevada Entity Type*: Domestic Corporation (78) 3. Plan of Conversion, Exchange or Merger: (select one box) The entire plan of conversion, exchange or merger is attached to these articles. The complete executed plan of conversion is on file at the registered office or principal place of business of the resulting entity. The entire plan of exchange or merger is on file at the registered office of the acquiring corporation, limited-liability company or business trust, or at the records office address if a limited partnership, or other place of business of the acquiring entity (NRS 92A.200). The complete executed plan of conversion for the resulting domestic limited partnership is on file at the records office required by NRS 88.330. (Conversion only) 4. Approval: (If more than one entity being acquired or merging please attach additional approval page.) Exchange/Merger: Owner's approval (NRS 92A.200) (options a, b or c must be used for each entity) A. Owner's approval was not required form for the : Acquired/merging Acquiring/surviving B. The plan was approved by the required consent of the owners of: Acquired/merging Acquiring/surviving C. Approval of plan of exchange for Nevada non-profit corporation (NRS 92A.160): Non-profit Corporations only: The plan of exchange/merger has been approved by the directors of the corporation and by each public officer or other person whose approval of the plan of merger is required by the articles of incorporation of the domestic corporation. Acquired/merging Acquiring/surviving TurnOnGreen, Inc. Name of acquired/merging entity IMPERALIS HOLDING CORP. Name of acquiring/surviving entity 5. Effective Date and Time: (Optional) Date:09/08/2022 Time: (must not be later than 90 days after the certificate is filed) BARBARA K. CEGAVSKE Secretary of State 202 North Carson Street Carson City, Nevada 89701-4201 (775) 684-5708 Website: www.nvsos.gov * corporation, limited partnership, limited-liability limited partnership, limited-liability company or business trust. Page 1 of 4 Filed in the Office of Secretary of State State Of Nevada Business Number E0185402005-9 Filing Number 20222601819 Filed On 09/08/2022 10:53:26 AM Number of Pages 11 Articles of Conversion/Exchange/Merger NRS 92A.200 and 92A.205 This filing completes the following: Conversion Exchange Merger 4. Approval Continued: (If more than one entity being acquired or merging please attach additional approval page.) Exchange/Merger: Owner's approval (NRS 92A.200) (options a, b or c must be used for each entity) A. Owner's approval was not required form for the : Acquired/merging Acquiring/surviving B. The plan was approved by the required consent of the owners of: Acquired/merging Acquiring/surviving C. Approval of plan of exchange for Nevada non-profit corporation (NRS 92A.160): Non-profit Corporations only: The plan of exchange/merger has been approved by the directors of the corporation and by each public officer or other person whose approval of the plan of merger is required by the articles of incorporation of the domestic corporation. Acquired/merging Acquiring/surviving Name of acquired/merging entity Name of acquiring/surviving entity 4. Approval Continued: (If more than one entity being acquired or merging please attach additional approval page.) Exchange/Merger: Owner's approval (NRS 92A.200) (options a, b or c must be used for each entity) A. Owner's approval was not required form for the : Acquired/merging Acquiring/surviving B. The plan was approved by the required consent of the owners of: Acquired/merging Acquiring/surviving C. Approval of plan of exchange for Nevada non-profit corporation (NRS 92A.160): Non-profit Corporations only: The plan of exchange/merger has been approved by the directors of the corporation and by each public officer or other person whose approval of the plan of merger is required by the articles of incorporation of the domestic corporation. Acquired/merging Acquiring/surviving Name of acquired/merging entity Name of acquiring/surviving entity BARBARA K. CEGAVSKE Secretary of State 202 North Carson Street Carson City, Nevada 89701-4201 (775) 684-5708 Website: www.nvsos.gov * corporation, limited partnership, limited-liability limited partnership, limited-liability company or business trust. Page 2 of 4 Articles of Conversion/Exchange/Merger NRS 92A.200 and 92A.205 6.Forwarding Address for Service of Process: (Conversion and Mergers only, if resulting/surviving entity is foreign) Name Country Care of: Address City State Zip/Postal Code 7. Amendment, if any, to the articles or certificate of the surviving entity. (NRS 92A.200): (Merger only) ** ** Amended and restated articles may be attached as an exhibit or integrated into the articles of merger. Please entitle them "Restated" or "Amended and Restated," accordingly. The form to accompany restated articles prescribed by the secretary of state must accompany the amended and/or restated articles. Pursuant to NRS 92A.180 (merger of subsidiary into parent - Nevada parent owning 90% or more of subsidiary), the articles of merger may not contain amendments to the constituent documents of the surviving entity except that the name of the surviving entity may be changed. 8. Declaration: (Exchange and Merger only) Exchange: The undersigned declares that a plan of exchange has been adopted by each constituent entity (NRS 92A.200). Merger: (Select one box) The undersigned declares that a plan of merger has been adopted by each constituent entity (NRS 92A.200). The undersigned declares that a plan of merger has been adopted by the parent domestic entity (NRS 92A.180). 9. Signature Statement: (Required) Conversion: A plan of conversion has been adopted by the constituent entity in compliance with the law the jurisdiction governing the constituent entity. Signatures - must be signed by: 1.If constituent entity is a Nevada entity: an officer of each Nevada corporation; all general partners of each Nevada limited partnership or limited-liability limited partnership; a manager of each Nevada limited-liability company with managers or one member if there are no managers; a trustee of each Nevada business trust; a managing partner of a Nevada limited-liability partnership (a.k.a. general partnership governed by NRS chapter 87). 2.If constituent entity is a foreign entity: must be signed by the constituent entity in the manner provided by the law governing it. Name of constituent entity BARBARA K. CEGAVSKE Secretary of State 202 North Carson Street Carson City, Nevada 89701-4201 (775) 684-5708 Website: www.nvsos.gov * corporation, limited partnership, limited-liability limited partnership, limited-liability company or business trust. Page 3 of 4 Articles of Conversion/Exchange/Merger NRS 92A.200 and 92A.205 9. Signature Statement Continued: (Required) Exchange: Signatures - Must be signed by: An officer of each Nevada corporation; All general partners of each Nevada limited partnership; All general partners of each Nevada limited-liability limited partnership; A manager of each Nevada limited-liability company with managers or a member if there are no Managers; A trustee of each Nevada business trust (NRS 92A.230) Unless otherwise provided in the certificate of trust or governing instrument of a business trust, an exchange must be approved by all the trustees and beneficial owners of each business trust that is a constituent entity in the exchange. The articles of exchange must be signed by each foreign constituent entity in the manner provided by the law governing it (NRS 92A.230). Additional signature blocks may be added to this page or as an attachment, as needed. Merger: Signatures - Must be signed by: An officer of each Nevada corporation; All general partners of each Nevada limited partnership; All general partners of each Nevada limited-liability limited partnership; A manager of each Nevada limited-liability company with managers or one member if there are no managers; A trustee of each Nevada business trust (NRS 92A.230). The articles of merger must be signed by each foreign constituent entity in the manner provided by the law governing it (NRS 92A.230). Additional signature blocks may be added to this page or as an attachment, as needed. 10. Signature(s): (Required) If more than one entity being acquired or merging please attach additional page of information and signatures. Name of acquiring/merging entity IMPERALIS HOLDING CORP. X Signature(Exchange/Merger) David J. Katzoff Title Other Date 09/08/2022 Name of acquiring/merging entity IMPERALIS HOLDING CORP. X Signature(Exchange/Merger) Darren Magot Title President Date 09/08/2022 X Signature of Constituent Entity(Conversion) Title Date Please include any required or optional information in space below: (attach additional page(s) if necessary) BARBARA K. CEGAVSKE Secretary of State 202 North Carson Street Carson City, Nevada 89701-4201 (775) 684-5708 Website: www.nvsos.gov * corporation, limited partnership, limited-liability limited partnership, limited-liability company or business trust. Page 4 of 4