Case 2:15-cv-00369-DN Document 2 Filed 05/19/15 Page 1 of 18

James L. Ahlstrom (8704)

jahlstrom@parrbrown.com
PARR BROWN GEE & LOVELESS, P.C.
101 South 200 East, Suite 700
Salt Lake City, Utah 84111
Telephone: (801) 532-7840
Facsimile: (801) 532-7750
Jonathan K. Hansen (12349)
jhansen@hbaalaw.com
Joshua C. Horrocks (14680)
jhorrocks@hbaalaw.com
HANSEN BLACK ANDERSON ASHCRAFT PLLC
3051 West Maple Loop Drive, Suite 325
Lehi, Utah 84043
Telephone: (801) 922-5000
Facsimile: (801) 922-5019
Attorneys for Plaintiff Typenex Co-Investment, LLC

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

TYPENEX CO-INVESTMENT, LLC, a Utah

Limited Liability Company,
Plaintiff,

COMPLAINT

v.
Case No. 2:15-cv-00369-DN
ADVANCED MEDICAL ISOTOPE
CORPORATION, a Delaware Corporation,

Judge: David Nuffer

Defendant.

Plaintiff Typenex Co-Investment, LLC (Typenex), through its attorneys of record,

hereby complains against Defendant Advanced Medical Isotope Corporation (AMIC) and
alleges as follows:

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PARTIES, JURISDICTION AND VENUE

1.

Typenex is a limited liability company organized and existing under the laws of the

State of Utah, with its principal place of business at 303 East Wacker Drive, Ste. 1040, Chicago,
Illinois 60601.
2.

AMIC is a corporation organized and existing under the laws of the State of

Delaware, with its principal place of business at 1021 N. Kellogg Street, Kennewick, Washington
99336.
3.

This Court has diversity jurisdiction under 28 U.S.C. 1332 because the parties are

citizens of different states and the amount in controversy exceeds $75,000.00.

4.

This Court has personal jurisdiction over Defendant AMIC based on it continuous

and systematic contacts with the State of Utah, through its regular transaction of business in this
judicial district.
5.

In addition, in a Securities Purchase Agreement dated March 17, 2014, the parties

expressly agreed to waive any trial by jury and to submit to the exclusive personal jurisdiction of
any state or federal court sitting in Salt Lake County, Utah.
6.

Venue is proper in this district under 28 U.S.C. 1391.

GENERAL ALLEGATIONS

March 17, 2014 Investment

7.

On March 17, 2014, Typenex and AMIC entered into a Securities Purchase

Agreement (the Purchase Agreement) and a Secured Convertible Promissory Note (the Note)
as well as several other documents in connection with the transaction, including Warrants to
Purchase Shares of Common Stock, Secured Buyer Notes, a Security Agreement, a Pledge

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Agreement, and other certificates, documents, resolutions, instruments, and agreements (all
collectively referred to in this Complaint as the Transaction Documents).
8.

Under the Purchase Agreement, Typenex agreed to deliver to AMIC the initial cash

purchase price of $150,000 and issue three Secured Buyer Notes in favor of AMIC, each in the
original principal amount of $50,000 (the initial cash purchase price together with the Secured
Buyer Notes are, the Purchase Price), in exchange for the Note and four Warrants to Purchase
Common Stock.
9.

On March 17, 2014, AMIC accepted the Purchase Price and delivered the executed

Note to Typenex in the original principal amount of $335,000.

10.

The Note was due on April 17, 2015 (the Maturity Date).

11.

In Section 3.2 of the Note, AMIC granted Typenex the right to convert all or any

portion of the outstanding balance of the Note into shares of duly authorized, validly issued, fully
paid and non-assessable AMIC common stock, $0.001 par value per share (Common Stock).
12.

In Section 8 of the Note, AMIC agreed to make monthly installment payments to

Typenex beginning on September 17, 2014.

13.

Per Section 8 of the Note, AMIC could pay each Installment Amount:
a. In cash;
b. By converting such installment amount into shares of Common Stock by
applying a formula outlined in Section 8.2 of the Note; or
c. By any combination of cash and Common Stock.

14.

Section 8.3 of the Note requires AMIC to notify Typenex whether AMIC elects to

make each installment payment in cash, Common Stock or a combination of the two.

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15.

If AMIC fails to send an installment notice to Typenex by the applicable installment

date, then AMIC is deemed to have elected to deliver Common Stock instead of making a cash
payment.
16.

Under Section 4.1(i) of the Note, an event of default occurs if AMIC fails to pay

any principal when due and payable.

17.

Under Section 4.1(ii) of the Note, an event of default occurs if AMIC fails to deliver

any shares of Common Stock due in accordance with a conversion notice delivered under the Note
(Conversion Shares).
18.

Under Section 4.2 of the Note, at any time following the occurrence of any event

of default, and upon written notice from Typenex to AMIC, Typenex may increase the interest rate
to 22% (the Default Rate).
19.

Additionally, under Section 4.2 of the Note, upon the occurrence of any event of

default, Typenex may elect to increase the outstanding balance (without accelerating the Note) by
multiplying the outstanding balance by 125% (the Default Effect).
20.

Section 4.2 of the Note provides that Typenex may apply the Default Effect with

respect to two events of default.

21.

Section 10 of the Note provides that if any conversion or installment is not timely

delivered, a late fee equal to the higher of $2,000 per day and 2% of the applicable conversion or
installment amount may be added to the outstanding balance.
22.

The cumulative late fee for any applicable conversion or installment is limited to

amount of the applicable conversion or installment amount.

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23.

Although the Note contains an arbitration provision, Section 16.2 of the Note

specifically exempts payment defaults from arbitration.

24.

Attachment 1, A12, to the Note defines an Event of Default under Section 4.1(i) or

4.1(ii) as a Payment Default.

25.

Section 6 of the Secured Buyer Notes provides that upon the occurrence of any

event of default under the Note, Typenex is entitled to deduct and offset any amount Typenex owes
under the Secured Buyer Notes from the outstanding balance of the Note.
AMIC Commits Several Breaches Under the Transaction Documents
26.

On September 17, 2014, AMIC was obligated to pay Typenex the applicable

installment amount plus any accrued and unpaid interest (the September Payment).
27.

On September 17, 2014, AMIC made the September Payment by delivering

17,105,263 shares of Common Stock to Typenex.

28.

On October 14, 2014, in accordance with a lender conversion notice, AMIC issued

9,117,826 shares of Common Stock to Typenex.

29.

On October 17, 2014, AMIC was obligated to pay Typenex the applicable

installment amount plus any accrued and unpaid interest (the October Payment).
30.

On October 17, 2014, AMIC made the October Payment by delivering 21,739,130

shares of Common Stock.

31.

On November 17, 2014, AMIC was obligated to pay Typenex the applicable

installment amount plus any accrued and unpaid interest (the November Payment).
32.

AMIC did not send an installment notice to Typenex for the November Payment

and therefore is deemed to have elected to make the November Payment in Common Stock.

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33.

AMIC failed to make the November Payment in Common Stock by the installment

date and, as of the date of this Complaint, has still not made the November Payment.
34.

Accordingly, AMIC has been assessed a late fee equaling the amount of the

November Payment, which amount has been added to the outstanding balance of the Note.
35.

AMICs failure to make the November Payment is an event of default under Section

4.1(i) of the Note.

36.

On December 2, 2014, in accordance with a lender conversion notice, AMIC issued

50,000,000 shares to Typenex.

37.

On December 17, 2014, AMIC was obligated to pay Typenex the applicable

installment amount plus any accrued and unpaid interest (the December Payment).
38.

AMIC did not send an installment notice to Typenex for the December Payment

and therefore is deemed to have elected to make the December Payment in Common Stock.
39.

AMIC failed to make the December Payment in Common Stock by the installment

date and, as of the date of this Complaint, has still not made the December Payment.
40.

Accordingly, AMIC has been assessed a late fee equaling the amount of the

December Payment, which amount has been added to the outstanding balance of the Note.
41.

AMICs failure to make the December Payment is an event of default under Section

4.1(i) of the Note.

42.

On December 30, 2014, in accordance with a lender conversion notice, AMIC

issued 53,500,000 shares to Typenex.

43.

On January 5, 2015, in accordance with a lender conversion notice, AMIC issued

54,500,000 shares to Typenex.

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44.

On January 14, 2015, Typenex issued a lender conversion notice that required

AMIC to deliver Conversion Shares as outlined in the January 14, 2015 conversion notice (the
January Conversion Shares).
45.

According to Section 9 of the Note, AMIC was obligated to deliver the January

Conversion Shares within three trading days after receiving the lender conversion notice, or by
January 20, 2015.
46.

AMIC failed to deliver the January Conversion Shares by January 20, 2015.

47.

On January 17, 2015, AMIC was obligated to pay Typenex the applicable

installment amount plus any accrued and unpaid interest (the January Payment).
48.

AMIC did not send an installment notice to Typenex for the January Payment and

therefore is deemed to have elected to make the January Payment in Common Stock.
49.

AMIC failed to make the January Payment in Common Stock by the installment

date and, as of the date of this Complaint, has still not made the January Payment.
50.

Accordingly, AMIC has been assessed a late fee equaling the amount of the January

Payment, which amount has been added to the outstanding balance of the Note.
51.

AMICs failure to make the January Payment is an event of default under Section

4.1(i) of the Note.

52.

On February 17, 2015, AMIC was obligated to pay Typenex the applicable

installment amount plus any accrued and unpaid interest (the February Payment).
53.

AMIC did not send an installment notice to Typenex for the February Payment and

therefore is deemed to have elected to make the February Payment in Common Stock.

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54.

AMIC failed to make the February Payment in Common Stock by the installment

date and, as of the date of this Complaint, has still not made the February Payment.
55.

Accordingly, AMIC has been assessed a late fee equaling the amount of the

February Payment, which amount has been added to the outstanding balance of the Note.
56.

AMICs failure to make the February Payment is an event of default under Section

4.1(i) of the Note.

57.

On March 17, 2015, AMIC was obligated to pay Typenex the applicable installment

amount plus any accrued and unpaid interest (the March Payment).
58.

AMIC did not send an installment notice to Typenex for the March Payment and

therefore is deemed to have elected to make the March Payment in Common Stock.
59.

AMIC failed to make the March Payment in Common Stock by the installment date

and, as of the date of this Complaint, has still not made the March Payment.
60.

Accordingly, AMIC has been assessed a late fee equaling the amount of the March

Payment, which amount has been added to the outstanding balance of the Note.
61.

AMICs failure to make the March Payment is an event of default under Section

4.1(i) of the Note.

62.

On April 17, 2015, the Maturity Date of the Note, AMIC was obligated to pay

Typenex the entire outstanding balance of the Note (the Maturity Date Payment).
63.

AMIC did not send an installment notice to Typenex for the Maturity Date Payment

and therefore is deemed to have elected to make the Maturity Date Payment in Common Stock.
64.

AMIC failed to make the Maturity Date Payment in Common Stock by the

installment date and as of the date hereof has still not made the Maturity Date Payment.

Case 2:15-cv-00369-DN Document 2 Filed 05/19/15 Page 9 of 18

65.

Accordingly, AMIC has been assessed a late fee equaling the amount of the

monthly installment amount and such amount has been added to the outstanding balance of the
Note.
66.

AMICs failure to make the Maturity Date Payment is an event of default under

Section 4.1(i) of the Note.

Default Notice
67.

On March 19, 2015, Typenex sent AMIC a Default Notice & Offset of Secured

Buyer Notes (the Default Notice).

68.

The Default Notice detailed the events of defaults that occurred when AMIC failed

to (a) make the November Payment, and (b) deliver the January Conversion Shares.
69.

Through the Default Notice, Typenex elected to offset the amounts owing under

the Secured Buyer Notes with the outstanding balance of the Note (the Offset).
70.

Typenex also notified AMIC that due to AMICs failure to make the November

Payment, interest began accruing on the outstanding balance at the Default Rate of 22% on
November 17, 2014.
71.

Finally, Typenex elected to apply the Default Effect to each of the two enumerated

events of default, thus increasing the outstanding balance of the Note.

72.

Although Typenex elected to apply the Default Effect with respect to the failure to

deliver the January Conversion Shares in the Default Notice, Typenex later withdrew the January
14, 2015 lender conversion notice and rescinded its election to apply the Default Effect with
respect to such event of default.

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73.

Following Typenexs rescission of the Default Effect with respect to the failure to

deliver the January Conversion Shares, Typenex sent written notice to AMIC on May 18, 2015
that it had instead elected to apply the Default Effect with respect to the failure to make the
December Payment.
AMIC Response
74.

Rather than paying the amount due under the Note by the Maturity Date, in a letter

dated April 28, 2015 (AMIC Letter), AMIC claimed the October 14, 2014, October 17, 2014,
December 2, 2014, December 19, 2014, December 30, 2014, and January 5, 2015 share issuances
(collectively, the Share Issuances) were defective and not fully paid because such shares were
issued below the par value of the Common Stock.
75.

The AMIC Letter alleges that Typenex received 187,918,556 more shares of

Common Stock than if AMIC had issued those shares at par value (the Excess Shares).
76.

In addition, AMIC alleges that the value of the Excess Shares is $187,918.56 (the

Excess Share Value).

77.

AMIC had absolute control over all issuances to Typenex, including the Share

Issuances AMIC claims were defective.

78.

The AMIC Letter demands that Typenex either: (a) return the Excess Shares to

AMIC for cancellation; or (b) cancel the Note and return to AMIC an additional 51,357,556 shares
of Common Stock for cancellation.
79.

The AMIC Letter gives Typenex a ten business-day deadline to reply or else AMIC

would automatically apply the second option.

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80.

Using AMICs self-serving and inaccurate balance (which AMIC claims is more

than $200,000 less than the balance stated in the Default Notice), the AMIC Letter concludes that
despite two events of default resulting in the application two Default Effects, the application of
failure to deliver fees for five missed installment payments, and accrual of interest at the Default
Rate from November 17, 2014, the Note would be cancelled and Typenex would still owe AMIC
additional shares of Common Stock.
81.

The AMIC Letter closes by stating that because the outstanding balance on the Note

is not enough to satisfy the Share Value Deficiency, AMIC will cancel the Note and then instruct
its transfer agent to notify Typenexs clearing broker to deliver shares back to AMIC to make up
for what AMIC claims is the deficiency between the Note Balance and the Excess Share Value.
82.

In short, AMICs response to its defaults under the Note, and receipt of the related

Default Notice, was to completely ignore it, artificially and erroneously claim for the first time a
reduced outstanding balance and to concoct a concomitant self-serving and ultimately
unsupportable legal theory, all in an attempt to somehow erase its obligations under the Note and
Transaction Documents and draw attention away from its clear breaches of the Transaction
Documents and events of default under the Note.
83.

Nowhere in the AMIC Letter does AMIC address the application of the Default

Effect or the accrual of interest at the default rate or provide any support or justification for its
purported outstanding balance.
84.

The AMIC Letter also does not address the fact that the Maturity Date on the Note

lapsed more than a week prior to sending the AMIC Letter and that AMIC has not repaid the Note.

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85.

The process outlined in the AMIC Letter with respect to the Share Issuances is

contrary to procedure set forth in Delaware law, and AMICs clear intent and goal is to try to
obfuscate the issues surrounding its clear defaults under the Note.
86.

What is more, in demanding a post-issuance assessment with respect to the Share

Issuance, the AMIC Letter itself is a violation of numerous representations, warranties and
resolutions, including Section 3.2 the Note, which provides that AMIC would only issue duly
authorized, validly issued, fully paid, and non-assessable shares.
87.

On May 7, 2015, Typenex sent AMIC a response to the AMIC Letter indicating

that AMICs contentions for defective issuances were without merit and that the Note was past
due and immediately due and payable.
88.

Typenex demanded full payment of the Note within three business days of

Typenexs response.
89.

AMIC has failed to pay the Note in accordance with Typenexs demand.

90.

The current outstanding balance of the Note is $679,892.12.

FIRST CAUSE OF ACTION
(Breach of Contract)

91.

Typenex incorporates the foregoing paragraphs of this Complaint as if fully set

forth herein.
92.

The Purchase Agreement, Note, and other Transaction Documents constitute valid

and binding contracts between Typenex and AMIC.

93.

Typenex fully performed under all the Transaction Documents, including the

Purchase Agreement and Note, by among other things, paying AMIC the Purchase Price required
under the Transaction Documents.
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94.

AMIC materially breached the Transaction Documents by, among other things:
a. failing to make the November Payment by the applicable installment date;
b. failing to make the December Payment by the applicable installment date;
c. failing to make the January Payment by the applicable installment date;
d. failing to make the February Payment by the applicable installment date;
e. failing to make the March Payment by the applicable installment date;
f. failing to make the Maturity Date Payment by the Maturity Date; and
g. breaching representations, warranties and covenants to issue duly authorized,
validly issued, fully paid, and non-assessable shares of Common Stock.

95.

As a direct and proximate result of AMICs breach of the Transaction Documents,

Typenex has been damaged in an amount to be proven at trial, but which amount is not less than
$867,810.68.
96.

Typenex is entitled to judgment against AMIC as set forth herein.

SECOND CAUSE OF ACTION
(Breach of the Implied Covenant of Good Faith and Fair Dealing)

97.

Typenex incorporates the foregoing paragraphs of this Complaint as if fully set

forth herein.
98.

As a matter of law, an implied covenant of good faith and fair dealing inheres in

the Transaction Documents, and requires AMIC to not act in a way that denies Typenex the benefit
of its bargain.
99.

The actions outlined in Paragraph 94 show that AMIC intentionally acted in a

manner that breached the Transaction Documents and denied Typenex the benefit of its bargain.

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100.

Indeed, one of the primary breaches of this implied covenant can be seen in the

form of AMICs attempts in the AMIC letter to concoct unsupportable legal theories based on
misrepresented facts in an attempt to skirt clear obligations owed under the Transaction
Documents.
101.

As a direct and proximate result of AMICs breach of the implied covenant of good

faith and fair dealing, Typenex has been damaged in an amount to be proven at trial, which amount
is believed to be not less than $867,810.68.
102.

Typenex is entitled to judgment against AMIC as set forth herein.

THIRD CAUSE OF ACTION
(Unjust Enrichment)

103.

Typenex incorporates the foregoing paragraphs of this Complaint as if fully set

forth herein.
104.

Typenex conferred benefits on AMIC by, among other things, providing AMIC

with $150,000 in cash and three $50,000 Secured Buyer Notes in connection with the March 17,
2014 loan.
105.

Typenex provided these benefits with the expectation that it would be compensated

in exchange in accordance with the terms set forth in the Transaction Documents, and Typenex
was precluded from using its funds to provide similar benefits to other interested parties in reliance
on such expectations.
106.

Typenexs expectation was reasonable under the circumstances.

107.

AMIC was fully aware of the benefits Typenex conferred upon AMIC.

108.

AMIC accepted and retained the benefits Typenex conferred upon it.

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109.

To permit AMIC to retain the benefits Typenex provided without fully

compensating Typenex would inequitably favor AMIC at Typenexs expense.

110.

Typenex is entitled to judgment against AMIC as set forth herein.

FOURTH CAUSE OF ACTION
(Declaratory Judgment)

111.

Typenex incorporates the foregoing paragraphs of this Complaint as if fully set

forth herein.
112.

AMIC has failed to comply with the Transaction Documents by failing to, among

other things: (i) make the November Payment, the December Payment, the January Payment, and
the March Payment; and (ii) make the Maturity Date Payment on the Maturity Date.
113.

Additionally, through the AMIC Letter, AMIC has demanded an assessment on

previously issued shares, which demand is in violation of Section 3.2 of the Note among other
representations, warranties, resolutions and covenants.
114.

AMIC claims the assessment is grounded in AMICs formation documents;

however, AMIC represented and warranted that nothing in the Transaction Documents or the
transactions contemplated therein violated AMICs formation documents.
115.

Typenexs interests in the Transaction Documents constitute legally protected

interests.
116.

The conflict between AMIC, on one hand, and Typenex, on the other hand, is ripe

for a judicial resolution and involves the rights, status, and legal relations of the parties involved
in this lawsuit.
117.

Under Utah Code Ann. 78B-6-401, Typenex is entitled to declaratory relief

declaring that: (a) the Transaction Documents are enforceable agreements; (b) AMIC is obligated
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to honor the Transaction Documents; and (c) AMICs failures to honor the Transaction Documents
are breaches of its obligations under the Agreement and Note that entitle Typenex to a ruling,
judgement, and order declaring, inter alia, that AMIC owes at least $867,810.68 under such
documents as a result of its breaches of the same.
118.

Typenex is entitled to judgment against AMIC as set forth herein.

FIFTH CAUSE OF ACTION
(Promissory Estoppel)

119.

Typenex incorporates the foregoing paragraphs of this Complaint as if fully set

forth herein.
120.

Typenex acted with prudence and in reasonable reliance on AMICs promises,

representations, warranties, and covenants to pay all principal sums, plus all interest, fees, charges,
and late fees by the Maturity Date; deliver installment amounts and Conversion Shares; and to
issue all shares as duly authorized, validly issued, fully paid, and non-assessable shares of
Common Stock.
121.

AMIC knew that Typenex relied on AMICs promises, which AMIC should

reasonably expect to induce Typenexs action or forbearance.

122.

AMIC was aware of all material facts surrounding Typenexs payment of the

Purchase Price, Typenexs reliance on AMICs promises, and Typenexs actions induced by
AMICs promises.
123.

Typenex reasonably relied on AMICs promises and the reliance resulted in a loss

to Typenex.
124.

Typenex is entitled to judgment against AMIC as set forth herein in an amount not

less than $867,810.68.

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SIXTH CAUSE OF ACTION

(Monies Had and Received)
125.

Typenex incorporates the foregoing paragraphs of this Complaint as if fully set

forth herein.
126.

Typenex delivered funds and Secured Buyer Notes to AMIC in reliance on AMICs

promise to repay the amount.

127.

AMIC has funds in its possession, which in equity and with good conscience,

should be paid over to Typenex.

128.

Typenex is entitled to judgment against AMIC as set forth herein.

SEVENTH CAUSE OF ACTION
(Negligent Misrepresentation)

129.

Typenex incorporates the foregoing paragraphs of this Complaint as if fully set

forth herein.
130.

AMIC carelessly, or negligently, made false representations to Typenex that AMIC

would pay all principal sums, plus all interest, fees, charges, and late fees by the Maturity Date;
deliver installment amounts and Conversion Shares; and to issue all shares as duly authorized,
validly issued, fully paid, and non-assessable shares of common stock.
131.

Typenex reasonably relied on these representations and acted on the same by

delivering the Purchase Price to AMIC.

132.

AMIC ignored its representations that it would pay all principal sums, plus all

interest, fees, charges, and late fees, and that it would issue all shares as fully paid, non-assessable
shares of common stock.

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133.

Through missed installment payments, failing to repay the Note on the Maturity

Date, and the AMIC Letter, AMIC demonstrated the falsity and carelessness in the representations
it made to Typenex.
134.

As a result, Typenex suffered a loss in the transaction.

135.

Typenex is entitled to judgment against AMIC as set forth herein

PRAYER FOR RELIEF

WHEREFORE, Typenex prays for judgment against AMIC as follows:

A.

For damages associated with each of the claims for relief in amounts to be proven,

including any unpaid fees as authorized by statute or contract, in an amount not less than
$867,810.68.
B.

For declaratory relief under the Transaction Documents.

C.

For specific performance by AMIC of all obligations owed and injunctive relief

ordering performance of the same.

D.

For an award of all costs, and reasonable attorneys fees incurred by Typenex.

E.

For such other and further relief as is deemed just and equitable under the

circumstances.
SIGNED and DATED: May 19, 2015
PARR BROWN GEE & LOVELESS, P.C.
/s/ James L. Ahlstrom
Attorneys for Plaintiff

4812-3158-2500, v. 1

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