Exhibit 10.28 to CNS, Inc. Form 10-K dated March 31, 2004






Exhibit 10.28 



CNS, Inc.

7515 Smetana Lane

Eden Prairie, Minnesota 55345

Phone: (952) 229-1500 Fax (952) 229-1700 

www.cns.com 



October 10, 2003 



Milton W. (Andy) Anderson

1460 Southridge

Eagan, MN 55121 





Dear Andy: 



This letter describes our agreement
regarding your resignation as Vice-President, Product Development & Regulatory officer
of CNS, Inc. (“CNS”) effective December 31, 2003. 



We will provide you with the
following benefits in connection with your departure from CNS: 



	1. 	
We will pay you Salary Continuation pursuant to the terms of Paragraph 7 of the
Employment Agreement as follows: 24 semi-monthly paychecks of $5,482.92, subject
to applicable withholding, beginning with the later of (a) our January 15, 2004
payday or (b) our first regular payday following expiration of the 15-day
rescission period described on page 3 of this agreement and our receipt of
Exhibit A, signed and dated by you after expiration of the rescission period.
Exhibit A is your certification that you took no steps to exercise your right of
rescission. In the event of a Change in Control, as that term is defined in the
“Executive Employment Agreement” dated February 12, 1999, the above-
referenced semimonthly paychecks will be accelerated and payable, in full, on
demand by you. As an employee of CNS until December 31, 2003, you will continue
to accrue, and may continue to use, paid time off; as part of your final
paycheck after December 31, we will pay you any unused paid time off as of that
date. As of September 30, 2003, your accrued unused paid time off was $19,737.12
or 312.0 hours. 







	  	Although not
required under the terms of your Executive Employment Agreement, you will be
eligible to receive a pro-rated bonus consistent with CNS business performance
under the CNS Management Incentive Plan for 2004 based on your December 31, 2003
Resignation Date, the terms of the Plan and provided that the Plan objectives
have been 















Milton W. (Andy) Anderson Separation Letter

Page 2 





	  	met. Payment of
any available bonus would occur at the normal payout time for all employees. We
estimate the payout to be made in May 2004. 






	2. 	
As a condition of your severance, you agree to make yourself available to CNS on
an as needed basis to provide consulting services not to exceed approximately
120 hours between January 1 and April 30, 2004 solely in connection with the
development of the special project you are currently working on with Dan Cohen.
CNS is not required to provide you with any minimum number of hours in
connection with the special project. You will report to and be subject to the
direction of Dan Cohen. For your consulting services in connection with the
special project, CNS will pay you at a rate of $100.00 per hour, subject to
verification of your hours, which payment shall be in addition to the payment of
severance described in paragraph 1 above. CNS will also reimburse you or pay
directly any pre-approved business expenses you incur in connection with your
consulting services on the special project, subject to its existing policies on
such expenses. For convenience, such payment will be considered as severance,
subject to any required tax withholding, but you agree that such services will
be rendered following your termination of employment, and you will not be
entitled to any pension, welfare or other fringe benefits provided to active
employees, but only to those benefits described in paragraph 3 below or to which
you are otherwise entitled as a terminated employee. CNS may, but is not
required to, engage you for additional consulting services not related to the
special project described above in its sole discretion, and in that event, you
will be compensated at a rate mutually agreeable to you and CNS. 







	3. 	
You will be eligible for COBRA continuation coverage under the CNS group health
and dental plan beginning January 1, 2003, for which you would otherwise be
responsible for 100% of the premium cost. As part of your severance, CNS will
continue to pay the employer share, and you will continue to be responsible for
the employee share, as applicable, of your CNS group health, dental and life
insurance premiums through December 31, 2004 or, if earlier, the date on which
you are eligible to participate in other group plans through your new employer,
provided you make the appropriate timely written elections to continue your CNS
group coverage’s. Your share of the premiums will be deducted from the
Salary Continuation payments described in paragraph 1. You agree to notify
CNS immediately if your eligibility under other group plans through your new
employer occurs. If you are not covered under other such group plans as of
December 31, 2004, you will have the right to continue your group
coverage’s at your own expense for up to an additional six months, in
accordance with applicable state and federal group insurance continuation laws
and the terms of the plans. All rights which you may have under CNS’s group
plans, are subject to the terms of the plans, applicable laws and the
continuation of said plans for active CNS employees. Information and election
forms concerning your group coverages will be mailed to you. During the period
you are providing consulting services to CNS as described in paragraph 2, you
will not be 
















Milton W. (Andy) Anderson Separation Letter

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	  	considered as an
employee for benefit plan purposes, but will only be entitled to your rights, if
any, under all CNS benefit plans as a terminated employee in accordance with the
terms of each such plan. 






	4. 	
We are providing you with the opportunity to voluntarily resign from your
employment. If any prospective employer of yours wishes to contact CNS for
employment information, you agree to direct that employer to make a written
inquiry to Michelle Beuning, Director of Human Resources. Ms. Beuning will
provide the prospective employer, in writing, with your job title, the scope of
your responsibilities, your dates of employment, and the fact that you
voluntarily resigned your employment. 







	5. 	
We will provide an executive outplacement package that we have selected with
Right Management Consultants at our expense. 







	6. 	
To the extent required under applicable law, we will indemnify you and hold you
harmless with respect to any action in which you are a named defendant that
arises out of your CNS employment responsibilities prior to your resignation on
December 31, 2003. 







	7. 	
We will remove all restrictive legends on any shares of CNS common stock held by
you. In connection with the removal, you agree that for a period of 90 days from
the date you cease to be employed by CNS, any shares that you sell will be sold
in compliance with the applicable requirements of Rule 144 under the Securities
Act of 1933. 







	8. 	
As of the date of this letter, you have 86,800 vested shares under your stock
options that are exercisable according to the terms of the applicable Stock
Option Plan and applicable Stock Option Agreement which will remain exercisable
for the period described in each option agreement. Your stock options are set
forth on Exhibit B. 







	9. 	
CNS will use its best efforts to see that its management will speak positively
and with respect about you as we have in the past. 







	10. 	
CNS will maintain the confidentiality of the terms of this agreement, except to
the extent persons responsible for the administration of the terms hereunder or
the provision of any compensation and benefits hereunder need to know, for
financial and securities compliance or as otherwise required by applicable law
or regulation. 







In consideration of the benefits to
be afforded to you as outlined above, you agree to do the following things: 












Milton W. (Andy) Anderson Separation Letter

Page 4 




	1. 	
You hereby release CNS, Inc., its past and present affiliates, and its and their
past and present officers, directors, agents, shareholders, employees,
attorneys, insurers and indemnitors (collectively, the “Releasees”)
from any and all claims and causes of action, known or unknown, which you may
have against any and all of them. Through this release, you extinguish all
causes of action against the Releasees occurring up to the date on which you
sign this agreement, including but not limited to any contract, compensation or
benefit claims; intentional infliction of emotional distress, defamation or any
other tort claims; and all claims arising from any federal, state or municipal
law or ordinance, including the Employee Retirement Income Security Act, the
Family and Medical Leave Act. This release extinguishes any potential claims of
employment discrimination arising from your employment with and resignation from
CNS, including specifically any claims under the Minnesota Human Rights Act, the
Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, the
Older Workers Benefit Protection Act, and the Age Discrimination in Employment
Act. This release does not extinguish any claims that arise against CNS after
you sign this agreement, to any benefits to which you are otherwise entitled
under any CNS benefit plan, or to the right to indemnification under CNS bylaws
or insurance. You certify that you (a) have not filed any claims, complaints or
other actions against any Releasee and (b) are hereby waiving any right to
recover from any Releasee under any lawsuit or charge filed by you or any
federal, state or local agency on your behalf based upon any event occurring up
to the date on which you sign this agreement. You are advised by CNS to review
your rights and responsibilities under this agreement with your own lawyer. 







	  	You have 21 days
to review and consider this offer. If you sign this letter before 21 days have
elapsed from the date on which you first receive it, then you will be
voluntarily waiving your right to the full 21-day review period. You also have
the right to rescind this agreement within 15 calendar days of the date upon
which you sign it. You understand that if you desire to rescind this agreement,
you must put the rescission in writing and deliver it to Michelle Beuning,
CNS, Inc., 7615 Smetana Lane, P.O. Box 39802,
Minneapolis, MN 55439-0802 by hand or by mail within 15 calendar days
of the date on which you sign this agreement. If you deliver the rescission by
mail, it must be postmarked within 15 calendar days of the date on which
you sign this agreement and sent by certified mail, return receipt requested. If
you rescind this agreement, all of CNS’s obligations to you, other than
payment of accrued unused paid time off, will immediately cease, and CNS will
owe you nothing hereunder. 






	2. 	
At our specific request and at mutually convenient times while you are receiving
payments under this agreement, you agree to consult with me or my designee
without additional compensation with respect to a limited amount of transitional
CNS business matters that are unrelated to the special project described in
paragraph 2 above or to any additional specific consulting assignments
otherwise agreed upon between you and CNS 
















Milton W. (Andy) Anderson Separation Letter

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	  	as described in
paragraph 2 above. You also agree to cooperate with CNS in any current or future
claims or lawsuits involving CNS where you have knowledge of the underlying
facts, and CNS will pay or reimburse you for any pre-approved travel or similar
expenses related to any such litigation and for such other expenses as agreed to
by CNS. In addition, you agree that you will not voluntarily aid, assist, or
cooperate with any claimants or plaintiffs or their attorneys or agents in any
claims or lawsuits commenced in the future against CNS, provided, however, that
nothing in this agreement will be construed to prevent you from testifying
truthfully as required by valid legal or administrative process. 






	3. 	
You agree that you will continue to speak positively and with respect towards
CNS as you have in the past. 







	4. 	
All knowledge and information not already available to the public which you have
acquired with respect to product development, improvements, modifications,
discoveries, designs, methods, systems, computer software, programs, codes and
documentation, research, designs, formulas, instructions, methods, inventions,
trade secrets, services or other private or confidential matters of CNS (such as
those concerning sales, costs, profits, organizations, customer lists, pricing
methods, etc.), or of any third party which CNS is obligated to keep
confidential, shall be regarded by you as strictly confidential and shall not be
used by you directly or indirectly or disclosed to any persons, corporations or
firms. All of the foregoing knowledge and information are collectively referred
to as “Confidential Information”. Your obligations under this
paragraph will not apply to any information that (a) is or becomes known to the
general public under circumstances involving no breach by you of the terms of
this paragraph, (b) is generally disclosed to third parties by CNS as a
continuing practice without restriction on such third parties, (c) is approved
for release by written authorization of CNS’ Board, or (d) you are
obligated by law to disclose. Confidential Information also includes the terms
of this agreement. You agree that you will not disclose its terms to anyone
other than your family members, tax and legal advisors and as otherwise required
by law. 







	5. 	
During the one-year period following your termination date, you shall not
directly or indirectly engage in, enter into or participate in the business of
CNS or in any business or commercial activity which does or is reasonably likely
to compete with or adversely affect the Business or products of CNS, either as
an individual for your own account, as a partner or a joint venturer, or as an
officer, director, consultant or holder of more than five percent (5%) of the
entity interest in, any other person, firm, partnership or corporation, or an
employee, agent or salesman for any person. In addition, during such period you
shall not: avail yourself of any advantages or acquaintances you have made with
any person who has, within the twelve (12) month period ended on the date of
termination of your employment, been a customer of CNS or its affiliates, and
which would, directly or 
















Milton W. (Andy) Anderson Separation Letter

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	  	indirectly,
materially divert business from or materially and adversely affect the Business
of CNS; interfere with the contractual relations between CNS and any of its
employees; or employ or cause to be employed in any capacity or retain or cause
to be retained as a consultant any person who was employed in any capacity by
CNS during the twelve (12) month period ended on the date of termination of your
employment. 






	  	For purposes of
this Agreement, the “Business of CNS” or “Business” means
and includes the business of the manufacture, production, sale, marketing and
distribution of the Breathe Right strip, FiberChoice, Flair strips and any other
products currently offered or currently under development by CNS or offered or
currently under development by CNS during the 12 months prior to the date of
termination of your employment. 






	6. 	
For one year following your termination date, you agree that you will not,
directly or indirectly, solicit any current or prospective CNS customer, broker,
vendor or distributor who is not, as of your termination date, a current
customer, broker, vendor or distributor of your new employer, consulting
business or any other enterprise in which you become involved after your
resignation from CNS, for the purpose of providing products or services for or
on behalf of said customer, broker, vendor or distributor which are currently
competitive with the products or services being provided by CNS, which are in
the development stages of being competitive with the products or services being
provided by CNS, or which would in any way cause said customer, broker, vendor
or distributor to discontinue or reduce its business relationship with CNS.
Current CNS customers, brokers, vendors or distributors include those customers,
brokers, vendors or distributors with whom CNS has had a business relationship
at any time within the twelve (12) month period immediately preceding your
resignation date. Prospective CNS customers, brokers, vendors and distributors
are those with whom (a) a CNS representative has been in direct personal contact
and (b) CNS has a reasonable opportunity of entering into a business
relationship within six months following your resignation date. You also agree
that during the same one-year period, you will not directly or indirectly
solicit any CNS employee to terminate his or her employment with CNS. This
employee nonsolicitation obligation shall apply to employees of CNS as of your
resignation date. 







	  	If, in your
opinion, the restrictions in this paragraph 6 or in paragraph 5 prevent you from
obtaining employment, you may make a written request for modification of the
restrictions with respect to a specific position that you are considering. The
president of CNS will review and consider your request and if she determines, in
her sole discretion, that the requested modification will not be adverse to
CNS’s business interests, she will provide you with the modification, which
must then be memorialized in writing and signed by both parties. In addition, if
you have any questions with respect to the scope of your obligations hereunder,
you agree to seek clarification from the president. 















Milton W. (Andy) Anderson Separation Letter

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This agreement shall not in any way
be construed as an admission of liability by CNS or as an admission that CNS has acted
wrongfully with respect to you. CNS specifically denies and disclaims any such liability
or wrongful acts. If any provision of this agreement is found to be illegal or
unenforceable, such provision will be severed or modified to the extent necessary to make
it enforceable, and as so severed or modified, the remainder of this agreement shall
remain in full force and effect. 



You understand that if you violate
any obligation that you have to CNS under this agreement, all payments and benefits to you
hereunder will immediately cease. In such event, your release of your claims shall remain
fully in effect in consideration of the payments and benefits that you received prior to
any such breach. 



This agreement sets forth our entire
agreement and fully supersedes any prior agreements, contracts or understandings between
you and CNS. CNS asks that our records reflect that you conclude your employment on terms
you understand and accept. Therefore, we ask you to declare that you have entered into
this agreement voluntarily, without coercion, duress, or reliance on any representations
by any CNS employee, agent or lawyer. 



If this letter accurately reflects
our understanding and agreement, please sign both copies and return the original to me. We
appreciate all of your efforts and contributions to CNS over the past 191⁄2 years and
wish you success in your future career. 



Sincerely, 



CNS, Inc. 




/s/   Larry Muma 



Larry Muma

VP, Operations & Technical 



Acknowledged and agreed to, with declarations

confirmed, this 24 day of October, 2003. 



/s/   Milton W. (Andy) Anderson 



Milton W. (Andy) Anderson