AGREEMENT AND PLAN OF MERGER

DATED AS OF OCTOBER 8, 2006

AMONG

GLAXOSMITHKLINE PLC,

PLATFORM ACQUISITION CORPORATION

AND

CNS, INC.

TABLE OF CONTENTS

i

ii

iii

AGREEMENT AND PLAN OF MERGER  

THIS AGREEMENT AND PLAN OF MERGER (Agreement) is made and entered into as of the 8th day of October, 2006 by and among GLAXOSMITHKLINE PLC, a public limited company organized under the laws of England and Wales (Parent), PLATFORM ACQUISITION CORPORATION, a Delaware corporation and a wholly-owned subsidiary of Parent (Merger Sub), and CNS, INC., a Delaware corporation (Company).

WHEREAS, the Boards of Directors of each of Parent, Merger Sub and Company deem advisable and in the best interests of their respective stockholders the merger of Merger Sub with and into Company (the Merger) upon the terms and conditions set forth herein and in accordance with the Delaware General Corporation Law (the DGCL) (Company, following the effectiveness of the Merger, being hereinafter sometimes referred to as the Surviving Corporation); and

WHEREAS, the Boards of Directors of Parent, Merger Sub and Company have approved, and the sole stockholder of Merger Sub has approved, this Agreement and the Merger pursuant to which Merger Sub will merge with and into Company and each outstanding share of Company common stock, par value $.01 per share (Company Stock), excluding any Company Dissenting Shares (as defined below), will be converted into the right to receive the Merger Consideration (as defined in Section 2.2(b)) upon the terms and subject to the conditions set forth herein;

WHEREAS, the Board of Directors of Company has unanimously resolved to recommend adoption of the agreement of merger contained in this Agreement and the transactions contemplated hereby by the stockholders of Company; and

WHEREAS, as an inducement to and condition of Parents willingness to enter into this Agreement, each of Marti Morfitt and Daniel E. Cohen is entering into a voting and support agreement, substantially in the form attached as Exhibit A, concurrently with the execution of this Agreement;

NOW, THEREFORE, on the basis of the foregoing recitals and in consideration of the respective covenants, agreements, representations and warranties contained herein, the parties hereto agree as follows:

ARTICLE 1.

DEFINITIONS  

1.1          Certain Defined Terms. Except as otherwise expressly provided for in this Agreement, or unless the context otherwise requires, as used throughout this Agreement the following terms shall have the respective meanings specified below:

Adjusted Performance Period has the meaning set forth in Section 12.1(c).

Affiliate of, or a Person Affiliated with, a specific Person(s) is a Person that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person(s) specified.

1

Affiliated Group means, with respect to any entity, a group of entities required or permitted to file consolidated, combined or unitary Tax Returns (as defined herein).

Benefit Arrangements has the meaning set forth in Section 4.20(b).

Board Recommendation has the meaning set forth in Section 6.6.

Book Entry Shares has the meaning set forth in Section 2.5(b).

Business Day means any day other than a Saturday, Sunday or other day on which banks in New York or Minnesota are required or authorized by law to be closed.

Capitalization Date has the meaning set forth in Section 4.2(a).

Certificate of Merger has the meaning set forth in Section 3.2.

Certificates has the meaning set forth in Section 2.5(b).

Closing has the meaning set forth in Section 3.1.

Closing Date has the meaning set forth in Section 3.1.

Code means the Internal Revenue Code of 1986, as amended.

Commencement Date has the meaning set forth in Section 12.3.

Company has the meaning set forth in the introductory paragraph of this Agreement.

Company 401(k) Plan means the Company 401(k) Retirement Plan and Trust.

Company Disclosure Letter means that letter designated as such which has been delivered by Company to Parent concurrently with the execution and delivery of this Agreement.

Company Dissenting Shares has the meaning set forth in Section 2.2(c).

Company Option List has the meaning set forth in Section 4.2(b).

Company Patents has the meaning set forth in Section 4.25(b).

Company Property has the meaning set forth in Section 4.12(b).

Company Registered IP has the meaning set forth in Section 4.25(b).

Company Registered Marks has the meaning set forth in Section 4.25(b).

Company Requisite Vote has the meaning set forth in Section 4.23.

2

Company SEC Documents has the meaning set forth in Section 4.5(a).

Company Stock has the meaning set forth in the second recital of this Agreement.

Company Stock Option Plans means, collectively, the 1987 Employee Incentive Stock Option Plan, the 1989 Employee Stock Purchase Plan, the 1990 Stock Plan, the 1994 Amended Stock Plan and the 2000 Stock Option Plan, in each case as amended.

Company Stock Option means any option or right to acquire Company Stock issued pursuant to the Company Stock Option Plans.

Company Stockholders Meeting has the meaning set forth in Section 6.6.

Competing Transaction has the meaning set forth in Section 6.1(m).

Confidentiality Agreement means that certain Confidentiality Agreement dated August 7, 2006, by and between SmithKline Beecham Corporation (d/b/a GlaxoSmithKline) and Company, as supplemented on September 12, 2006 and September 20, 2006 so as to allow Parent access to certain additional materials of Company.

Home        Intelligence        Services        Subscriptions        News        About Us

Contact Us       Terms of Use       Resend Documents       Shopping Cart

Copyright © 2008 The Consus Group LLC