Exhibit 10.6 SETTLEMENT AGREEMENT This Settlement Agreement (hereafter "Agreement") is entered into by and between Maya, LLC ("Maya"), Rex H. Lewis and AIDS Research, LLC, on the one hand, and Cytodyn of New Mexico, Inc. ("CNMI"), Allen D. Allen, Corinne E. Allen and CytoDyn, Inc. (collectively hereinafter sometimes referred to as "the CytoDyn Parties"), on the other hand, with respect to the following facts and circumstances: RECITALS A. Maya filed an action in Los Angeles Superior Court entitled Maya v. Cytodyn of New Mexico, Inc., CytoDyn, Inc., Allen D. Allen and Corinne E. Allen and DOES 1-50; Case Number EC041590 (hereinafter "the Glendale Action"). B. In the Glendale Action, Maya's claims for relief fall into two broad categories. The first category consists of several counts for securities fraud consisting of the following: (1) intentional misrepresentation; (2) negligent misrepresentation; (3) suppression of facts; and (4) violating California Corporations Code section 25401, et seq. C. The second category of claims consists of Maya's claims that it asserts derivatively on behalf of Amerimmune, Inc. and Amerimmune Pharmaceuticals, Inc. and consisting of claims for intentional interference with contractual relations, negligent interference with contractual relations and interference with prospective economic advantage (collectively "Maya's Derivative Claims on Behalf of the Amerimmune Entities"). D. There is now pending in the Commonwealth of Massachusetts an action entitled CytoDyn, Inc., et al. v. Amerimmune, Inc., et al.; Cause of Action Number 05-0452-C (hereinafter "the Massachusetts Action"). In the Massachusetts Action, CytoDyn, Inc. ("CytoDyn") and Allen D. Allen, the plaintiffs, and Maya, the plaintiff-in-intervention, are asserting competing claims to a cell bank currently being stored by Biovest International, Inc. (the "Cell Bank"). Both CytoDyn and Mr. Allen, on the one hand, and Maya and AIDS Research, LLC, on the other hand, maintain that they are entitled to possession and ownership of the Cell Bank. E. CNMI previously submitted an application to the United States Food & Drug Administration ("the FDA") for permission to conduct clinical trials for an Investigational New Drug ("IND"). It is commonly referred to as BB-IND 6845 ("the Old IND"). CytoDyn and Mr. Allen, on the one hand, and Maya and AIDS Research, LLC, on the other hand, have made claims to the Old IND. F. CytoDyn, Inc. previously filed an action on or about April 20, 2004 against Amerimmune Pharmaceuticals, Inc. and Amerimmune, Inc. in the Superior Court for the County of Ventura, Case No. SC-039250. CytoDyn, Inc. obtained a default judgment on or about October 4, 2004 (the "Ventura County Default Judgment"). A copy of the Ventura County Default is attached hereto as Exhibit "A." The Ventura County Default Judgment purported to grant CytoDyn, Inc. ownership of certain "Technology," including the Cell Bank and the "Old IND. " G. CytoDyn, Inc. recently submitted a new and different application to the FDA seeking its permission to conduct clinical trials for an Investigational New Drug named Cytolin ("the New IND"). CytoDyn is the sponsor for the New IND and possesses the rights associated with and pursuant to the New IND. 1 H. It is understood and agreed that this Agreement is made to compromise contested claims and is entered into solely for the purpose of avoiding the expense and inconvenience of further proceedings, and that nothing contained herein shall be interpreted or construed as an admission or acknowledgment by any of the parties hereto of any wrongdoing or fault, of any nature whatsoever, and that any and all such faults or wrongdoings are hereby expressly denied. I. It is further understood and agreed that none of the dismissals filed pursuant to this Agreement are on the merits and that they do not reflect on the merits of any of the claims dismissed, but are the result of a settlement for consideration, and such dismissals shall not constitute a "favorable termination" of the claims dismissed for purposes of the torts of malicious prosecution or abuse of process, any claims for which are in any event hereby waived. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS, THE MUTUAL PROMISES CONTAINED HEREIN, AND FOR OTHER VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, IT IS HEREBY AGREED AS FOLLOWS: COVENANTS --------- 1.1 Maya will file a notice of settlement with the Court in the Glendale Action forthwith so that all scheduled hearings and the trial will be taken off calendar in order to allow the parties to avoid incurring additional attorneys' fees and costs. In the event the payment due on or before December 31, 2008 is not paid, the trial shall be placed back on the Court's trial calendar. 1.2 The CytoDyn Parties, for themselves, and for each and all of their parents, subsidiaries, assignees, and successors, and for all others claiming through or under them hereby release their claims, if any, to the following: (1) the cell bank, as described more particularly on Exhibit "B" hereto, and the documentation, electronic files, and batch files stored with Biovest International, Inc. or elsewhere with respect to the cell bank (collectively referred to as the "Cell Bank"); and (2) the Old IND. The CytoDyn Parties also waive the benefits of the Ventura County Default Judgment with respect to the Cell Bank and the Old IND. Upon the exchange of executed copies of this Agreement, the CytoDyn Parties shall also provide to counsel for Maya a signed letter for delivery to the United States Food & Drug Administration confirming their release of their claims to the above-described items to it. Said letter shall be in the form of the letter attached as Exhibit "c" hereto. 1.3 CytoDyn, Inc. shall pay Maya $50,000.00 on or before January 14, 2008, and $25,000 on or before December 31,2009 by delivering cashier's checks payable to Maya to its counsel, Bruce M. Lorman, Esq. at his office located at 1717 Fourth Street, 3rd Floor, Santa Monica, CA 90401. The $25,000 payment due by December 31, 2009 shall accrue simple interest at a rate of ten (10%) per annum. 1.4 Upon delivery by CytoDyn, Inc. of the cashier's check in the amount of $50,000 to Mr. Lorman described in Paragraph 1.3 above, Maya and the CytoDyn Parties shall file with the Superior Court in the Glendale Action a stipulation and order for dismissal of Maya's first amended complaint in its entirety with prejudice in the form attached as Exhibit "D" hereto. The Cytodyn Parties and Maya hereby stipulate and agree that judgment shall be entered in the Massachusetts Action in the form attached as Exhibit "E" hereto. Upon the exchange of executed copies of this Agreement, the Cytodyn Parties shall provide to counsel for Maya a fully signed original of Exhibit "E." The stipulation and order in the Glendale Action shall provide, inter alia, that (1) the Court in the Glendale Action shall retain jurisdiction to enforce this Agreement 2 pursuant to California Code of Civil Procedure Section 664.6; and (2) in the event of a failure by CytoDyn to make the second settlement payment described above by the date due (i.e., December 3 1, 2009), the entire unpaid balance of the settlement shall become immediately due and payable and the Court shall upon ex parte application by Maya, vacate the dismissal and enter judgment in favor of Maya, and against the CytoDyn Parties, in the amount of the unpaid balance of the settlement, together with simple interest on said unpaid balance of the settlement at a rate of ten (10%) per annum from December 31, 2008 to the date of entry of judgment. 1.5 Upon payment of the sum of $50,000 referred to in Section 1.4, except for the obligations created by this Agreement, Maya and AIDS Research, LLC, for themselves and for each and all of their members, shareholders, parents, subsidiaries, assignees, and successors, and for all others claiming through or under them (collectively the "Maya Releasors"), hereby irrevocably and unconditionally remise, release, acquit, absolve and forever discharge the CytoDyn Parties and each of them, and each and all of their past or present predecessors, successors, members, parents, subsidiaries, shareholders, assigns, heirs, executors, administrators, agents, representatives, consultants, directors, officers, attorneys, employees, and insurers (hereinafter collectively "the CytoDyn Party Releasees") of and from any and all manner of actions, causes of action, in law or in equity, debts, contracts, charges, complaints, claims, suits, damages, obligations, promises, agreements, controversies, losses, costs, judgments, or expenses (including attorney's fees and court costs), of any nature whatsoever, known or unknown, fixed or contingent, direct or derivative, subrogated or assigned, suspected or unsuspected, which the Maya Releasors have or may have, or which the Maya Releasors at any time heretofore had or claimed to have, or which the Maya Releasors at any time hereafter may have or claim to have, against any of the CytoDyn Party Releasees by reason of any matter, cause, act, omission, or thing whatsoever from the beginning of time to the date of this Agreement. 1.6 Except for the obligations created by this Agreement, the CytoDyn Parties, for themselves, and for each and all of their shareholders, parents, subsidiaries, assignees and successors, and for all others claiming through or under them, hereby irrevocably and unconditionally remise, release, acquit, absolve and forever discharge Maya, LLC, AIDS Research, LLC and Rex Lewis, and each and all of their past or present predecessors, successors, members, parents, subsidiaries, shareholders, assigns, heirs, executors, administrators, agents, representatives, consultants, directors, officers, attorneys, employees, and insurers (hereinafter collectively "the Maya Releasees") of and from any and all manner of actions, causes of action, in law or in equity, debts, contracts, charges, complaints, claims, suits, damages, obligations, promises, agreements, controversies, losses, costs, judgments, or expenses (including attorney's fees and court costs), of any nature whatsoever, known or UnknO\\-11, fixed or contingent, direct or derivative, subrogated or assigned, suspected or unsuspected, which the CytoDyn Parties have or may have, or which the Cy10Dyn Parties at any time heretofore had or claimed to have, or which the CytoDyn Parties at any time hereafter may have or claim to have, against any of the Maya Party Releasees by reason of any matter, cause, act, omission, or thing whatsoever from the beginning of time to the date of this Agreement. 1.7 Upon payment of the sum of $50,000 referred to in Section 1.4, except for the obligations created by this Agreement, Rex Lewis, for himself, and for each and all of his assignees, successors, and for all others claiming through or under him, hereby irrevocably and unconditionally remises, releases, acquits, absolves and forever discharges the Cy10Dyn Party Releasees of and from any and all manner of actions, causes of action, in law or in equity, debts, contracts, charges, complaints, claims, suits, damages, obligations, promises, agreements, controversies, losses, costs, judgments, or expenses (including attorney's fees and court costs), of any nature whatsoever, known or unknown, fixed or contingent, direct or derivative, subrogated 3 or assigned, suspected or unsuspected, which Mr. Lewis has or may have, or which he at any time heretofore had or claimed to have, or which the he at any time hereafter may have or claim to have, against any of the CytoDyn Party Releasees by reason of any matter, cause, act, omission, or thing whatsoever from the beginning of time to the date of this Agreement. 1.8 The parties hereto, and each of them, hereby expressly waive all rights or benefits which they now have, or in the future may have, under Section 1542 of the California Civil Code, and any law or principle of similar effect of any state or territory of the United States. Section 1542 of the California Civil Code reads as follows: "Section 1542. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." 1.9 The parties hereto hereby acknowledge that they are aware that they may hereafter discover facts in addition to or different from those which they now know or believe to exist with respect to the matters covered by this Agreement. The parties hereto also acknowledge that such different or additional facts, if they exist, may have given or may hereafter give rise to causes of action, claims, demands, controversies, damages, costs, and expenses which are presently unknown, unanticipated, and unsuspected. The parties hereto further agree, represent, and warrant that the releases contained herein have been negotiated and agreed upon in light of that realization, and that it is their intention through this Agreement, and with the advice of counsel, fully, finally, and forever to settle and release to the fullest extent permitted by law any and all possible claims, causes of action, disputes, and differences, known or unknown, suspected or unsuspected, arising out of all facts, events, circumstances or occurrences from the beginning of time to the date of this Agreement, except for those obligations created herein. In furtherance of such intention the parties agree that the releases contained in this Agreement will remain in effect and will be fully binding notwithstanding the discovery or existence of any additional or different facts. 1.10 The parties hereto, and each of them, covenant and agree not to bring any suit, action or arbitration proceeding against any of the other parties hereto with respect to any of the matters referenced herein, including without limitation, all claims and/or causes of action asserted in the Glendale Action and the Massachusetts Action, and in particular including, but not limited to, any derivative claims on behalf of Amerimmune Pharmaceuticals, Inc. or Amerimmune, Inc. MISCELLANEOUS PROVISIONS ------------------------ 2.1 This Agreement is intended by the parties hereto as the final expression of their agreement and as a complete and exclusive statement of the terms and provisions thereof. Nothing other than this Agreement shall be relevant or admissible to supplement or vary any of the terms or provisions set forth herein. No party hereto has made any statement or representation to any other party regarding any fact or facts relied upon by any other party in entering into this Agreement, and each party specifically does not rely upon any statement, representation, or promise of any other party in executing this Agreement, or in making the settlement provided for herein. This Agreement constitutes a single, integrated written contract expressing the entire agreement of the parties hereto relative to the subject matter hereof. No covenants, agreements, representations, or warranties of any kind whatsoever have been made by any party hereto, except as specifically set forth in this Agreement. All prior discussions and negotiations have been and are merged and integrated into, and are superseded by, this 4 Agreement. 2.2 This Agreement may be executed in one or more counterparts including facsimile copies, each of which when executed and delivered shall be an original, and all of which when executed shall constitute one and the same instrument. A signature transmitted by facsimile shall be as binding and effective as an original. Moreover, photocopies of this Agreement, including photocopies of the signature pages hereof, may be used as originals, in the absence of any bona fide challenge to their authenticity. 2.3 The parties to this Agreement, and each of them, represent and warrant that none of the claims or rights purported to be released herein has previously been assigned or otherwise transferred to any other person or entity, including by way of subrogation or operation of law. In the event that any claim, demand, or suit is made or instituted against any party hereto because of any such purported assignment, subrogation, or transfer, the party or parties so assigning or transferring, as the case may be, agree(s) to (1) indemnify and hold harmless each of the parties to this Agreement against any such assigned, subrogated or transferred claim, demand or suit; (2) satisfy any such assigned, subrogated, or transferred claim, demand, or suit; and (3) pay all reasonable costs of defense and/or investigation, including attorneys' fees and court costs. 2.4 This Agreement shall inure to the benefit of and bind the successors, assigns, heirs, executors, and administrators of the parties. 2.5 For the purposes of interpretation of this Agreement, it is specifically agreed by all parties hereto that it shall be assumed that all parties drafted each provision of this Agreement. 2.6 Each individual signing and executing this Agreement on behalf of a partnership, corporation, trust, or other entity, warrants that he or she is duly authorized to sign and execute this Agreement on behalf of such partnership, corporation, trust or other entity, in accordance with the authority granted under the formation documents of such entity, that all conditions to the exercise of such authority have been satisfied, and that this Agreement is binding upon such entity in accordance with its terms. 2.7 Each party to this Agreement agrees to do all things necessary or convenient to carry out or effectuate the terms and intent of this Agreement. Each and every provision hereof requiring a party to do a certain act, however expressed, shall include the obligation of such party not to take directly or indirectly, any action or do any act, or aid, assist or cooperate with any third party in the taking of any action or in the doing of any act, that would tend to defeat in any way the intent of this Agreement. 2.8 All questions with respect to the construction of this Agreement and the rights and liabilities of the parties hereto shall be governed by the laws of the State of California. 2.9 Each person signing this Agreement has had a full and fair opportunity to receive independent legal advice from attorneys of his, her or its choice with respect to the advisability of making the settlement provided for herein, and with respect to the advisability of executing this Agreement. Prior to the execution of this Agreement, that person reviewed same at length, made such investigation of the facts pertaining to this settlement as he, she or it deemed necessary, and received, to the extent desired, the advice of counsel in reviewing and explaining the terms and consequences of this Agreement. This Agreement has been carefully read by, the contents hereof are known and understood by, and it is signed freely by each person executing same. 2.10 In any action to enforce this Agreement or to recover damages for its breach, the 5 revailing party shall be entitled to an award of reasonable attorneys' fees. Wherefore, the parties have executed this agreement as of the dates set forth below. DATED: December __ , 2008 ___________________________ Rex H. Lewis DATED: December __ , 2008 Maya, LLC By: ___________________________ Rex H. Lewis, Its Manager DATED: December __ , 2008 AIDS Research, LLC By: ___________________________ Rex H. Lewis, Its Manager DATED: December __ ,2008 Cytodyn of New Mexico, Inc. By: ___________________________ Allen D. Allen DATED: December __, 2008 CytoDyn , Inc. By: ___________________________ Allen D. Allen, President DATED: December __, 2008 By: ___________________________ Allen D. Allen DATED: December __, 2008 ___________________________ Corinne E. Allen 6 APPROVED AS TO FORM: LAW OFFICES OF BRUCE M. LORMAN By: _______________________________ Bruce M. Lorman, Esq. Attorneys for Plaintiff MUNDELL, ODLUM & HAWS, LLP By: _______________________________ Marshall Brubacher, Esq. Attorneys for Defendants 7