UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable Delbert R. Terrill, Jr.
`Administrative Law Judge
`---
`
`In the Matter of
`CERTAIN NETWORK INTERFACE
`CARDS AND ACCESS POINTS FOR
`USE IN DIRECT SEQUENCE SPREAD
`SPECTRUM WIRELESS LOCAL
`AREA NETWORKS AND PRODUCTS
`CONTAINING SAME
`
`--
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`Investigation No. 337-TA-455
`
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`PROXIM, INC. 'S OPPOSITION TO RESPONDENT D-LINK'S
`MOTION TO COMPEL PRODUCTION OF THE "MICRILOR, INC.'S
`POSITION PAPER ON PATENTS AND IP DATED 8/31/99" AND
`" A T T A C " T 2 0 T Q ~
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`Complainant, Proxim, Incorporated ("Proxim") hereby opposes the motion of
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`Intervenor Agere Systems, Hnc. ("Agere") to compel pmduction of "Micrilor, Inc. 's Position
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`Paper on Patents and IP dated 8/3 1/99" ("Position Paper") and "Attachment 20 to the
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`Disclosure Schedule" ("Attachment 20"j. Proxim has properly set forth the nature of the
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`privileged protection of these documents, and D-Link's motion is merely an attempt to take
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`advantage of the acquisition of Micrilor by Proxim in an effort to improperly obtain documents
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`relating to legal analysis relating to the intellectual property position of the patents in suit. D-
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`Link has failed to show that such a disclosure is prejudicial and argues against the facts
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`surrounding the disclosure by suggesting that any privilege attached to the documents was
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`waived. For these and the following reasons, D-Link's motion must fail.
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`

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`A. The Circumstances Surrounding the Sharing of the Position Paper Between
`Micrilor and Proxim Support A Finding of Common Legal Interest Between Them
`Sufficient to Retain the Privilege of the Document
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`When a party shares a privileged communication with a third party, such disclosure
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`does not necessarily constitute a waiver of the attorney-client privilege regarding that
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`communication. Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146 (D.S.C. 1974);
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`Union Carbide Corp. v. Dow Chemical Co., 619 F. Supp. 1036 (D. Del. 1985). When the
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`party holding the privilege and the third party share a common legal interest in the subject
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`matter of the shared communication, such as the anticipation of joint litigation, the privilege is
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`not waived. Union Carbide, 619 F. Supp. at 1047. Such “communications to non-parties can
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`‘retain a protective shield if the parties have a common legal interest, such as where they are
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`co-defendants or anticipate joint litigation . . . the key Consideration is that the nature of the
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`legal interest be identical, not similar, and be legal, not solely commercial.’ (emphasis added)”
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`Hewlett-Packard Co. v. Bausch & Lomb fnc., 115 F.R,D. 308, 309 (N.D. Cal. 1987) (citing
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`Union Carbide). Contrary to D-Link’s implication that IIewlett-Packard is limited to joint
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`defendants (D-Link Brief at p. 9), authority that D-Link itself relies upon considers the
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`community of interest exception in the context of a plaintiff and licensee. See SCM Corp. v.
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`Xerox Corp. , 70 F.R.D. 508, 514 (D. Clonn. 1976).
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`The dispute here regarding the Position Paper does not revolve around a disclosure
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`from which D-Link can assert that it is prejudiced. This is not the case where there has been
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`a “partial disclosure,” characterized by the Hewlett-Packurd court as “when a party tries to use
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`advantageous portions of the privileged information while shielding portions that might be
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`harmful to their case” Hewlett-Packard, 115 F.R.D. at 311. Proxim has made no attempt to
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`rely on or present any portion of the Position Paper in this litigation. The disclosure by
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`Micrilor to Proxim thus does not raise the issue of the use of the privilege as a “sword or
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`shield” to gain an unfair advantage against its opponents. Rather, D-Link has attempted to
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`opportunistically seize on the necessities of disclosure between the parties in the acquisition by
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`Proxim of Micrilor to obtain information regarding Proxim’s strategy relating to litigation of
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`the patents in suit.
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`Where Micrilor had undertaken to “impress upon [Proxim] the importance of
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`maintaining the confidentiality of the [document] ” and Proxim “in turn, seems to have
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`undertaken to hold the [document/ in confidence,” a finding of waiver goes against the intent
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`of the parties in sharing the communication. Id. Such an outcome would be likely to impede
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`frank communication between buyers and sellers and “increases the risk that prospective
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`buyers will not have access to important information that could play key roles in assessing the
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`value of the business or product they are buying.” Id. “Procedural rules generally should not
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`be enacted which result in reduced cormnunication betwecn buyers and sellers. ” Rayman v.
`Am. Charter Fed. Sav. & Loan Assoc., 150 F.R.D. 634, 641 (D. Neb. 1993) (discussing
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`Hewlett-Packard) .
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`D-Link’s argument that the sharing of the Position Paper and Attachment 20 between
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`Micrilor and Proxim waives any privilege that such a document would have is exactly the sort
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`of argument that Hewlett-Packard and Raymun criticize. A company who is looking to buy
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`another company must inquire as to the value of various assets of the potential acquisition.
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`Just like in Hewlett-Packard, where a company needed to know what its legal position after
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`acquiring a putatively infringing division would be, Proxim needed to know what its legal
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`position would be in relation to potential infringement of the intellectual property of its newly
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`acquired subsidiary. In order to obtain that information, it signed a non-disclosure agreement
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`with Micrilor. Such an agreement protects the confidentiality of the information, so that
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`Micrilor ’ s attorney and his agents within Micrilor were able to provide meaningful information
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`should Proxim step into the shoes of Micrilor regarding the infringement of the patents at
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`issue.
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`The Position Paper was prepared at the direction of an attorney to explain the potential
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`infringement of two of the patents at issue. D-Link’s depiction of the timing of the document
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`in relation to Micrilor and Proxim’s relationship attempts to insinuate that the document was
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`provided as part of a cooperative commercial arrangement relating to an FCC rulemaking
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`decision. By referring to the date the document was authored and then communicated to
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`Micrilor’s counsel, D-Link clouds the fact that the document was not actually provided to
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`Proxim until an investigation began of the prospects for the corporate acquisition of Micrilor
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`by Proxim. Micrilor’s disclosure of the IP paper to Proxim occurred over a month after it was
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`authored, under conditions which reinforce the assertion that it was a confidential document.
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`Moreover, D-Link’s timeline regarding the development of the acquisition discussions is
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`selective and inaccurate. D-Link asserts that “as of August 3 1, 1999, there was no relationship
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`between Proxim and Micrilor.” (D-Link Brief at 3). However, attached Exhibit A (at P
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`219990- P 219991) shows that, while there was no finalized position, such a relationship was
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`certainly contemplated and desired in that the two companies had already signed a Non-
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`Disclosure Agreement on August 11, 1999. D-Link asserts that “when the Micrilor Position
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`Paper was shared with Proxim, Proxim and Micrilor had not even agreed to negotiate.’’
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`However, attached Exhibit B (at P219989) shows that Micrilor was preparing terms for the
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`Letter of Intent prior to the sharing of the Position Paper, and was doing so in light of the
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`Non-Disclosure Agreement already existing between the two companies. See also Exibit F to
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`D-Link's Memorandum in Support of its Motion to Compel (discussion between Proxim and
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`Micrilor referring to the existing NDA between the two companies).
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`Micrilor conducted itself in a manner which indicated it expected the confidentiality and
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`privilege of the document to be maintained, aclld did
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`of the disputed
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`s over to Proxim. Micrilor shared its Position Paper with Proxim not just because it
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`expected to be joint parties with Proxini to an infringement suit, but because it expected that
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`they would become the same party to that suit. This is an identical legal interest in the patents,
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`regardless of the "overlap of the commercial and legal interest."
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`Respondents attempt to sidestep this identity of interests in the patents by asserting that
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`the disclosures were made in the context of an acquisition and were thus made for "business or
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`commercial" reasons. (See D-Link Brief at 9). According to D-Link, "Micrilor's interest
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`would have been in obtaining as much money as it could for the purchase of its intellectual
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`property assets,'' and because of that the documents should be treated as an "incentive" to
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`make a deal. D-Link's argument attempts to conveniently parse out the legal interests from the
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`commercial interests. Proxim was not purchasing Micrilor 's intellectual property; it was
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`acquiring the entire company, including all of its assets and personnel. Additionally, the fact
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`that the document was prepared as early as August but was not shared with Proxim until over a
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`month later belies D-Link's notion that it was a "brochure" for Micrilor's IP. As noted above,
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`"the fact that there may be an overlap of a commercial and a legal interest for a third party
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`does not negate the effect of the legal interest in establishing a community of interest. ”
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`Duplan, at 1172.
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`B.
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`The Sharing of Attachment 20 Does Not Waive The Privilege Of The Legal
`Analysis It Contains
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`Attachment 20 to the Micrilor/Proxim merger agreement was prepared as a statement
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`by the parties as a part of their merger documents regarding the intellectual property obtained
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`as part of the Micrilor purchase. To argue that the privilege was waived because the
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`attachment is dated a week before the formal signing of the agreement is to elevate form over
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`substance. Proxim moved into Micrilor’s shoes for the purposes of ownership of Micrilor’s
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`intellectual property, with all of its rights. Proxim was not a mere licensee -- Micrilor was
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`absorbed into Proxim entirely. D-Link has failed to provide any reason to believe that there
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`was any material change of circumstance in between when the Attachment is dated and a week
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`later when the acquisition was formalized. More importantly, D-Link’s “bargaining table”
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`argument fails here because there is no reason to believe that this document was part of any
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`efforts to haggle over the commercial value of the deal. All of D-Link’s cited authority deals
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`with parties who are in adverse positions in relation to a negotiation or who are adverse with
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`respect to the subject matter of the shared communication. D-Link has supplied no evidence
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`that this document was part of any negotiation over the merger. Rather, Micrilor’s Board had
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`already voted to merge with Proxim as of December 29, 1999. (Exhibit C, at P 219223-224).
`
`C.
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`D-Link Has Failed to Demonstrate that Micrilor Waived Its Attorney-Client
`Privilege By Its Disclosure of Documents to Proxim
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`Micrilor’s disclosure of the Position Paper was made to Proxim under a nondisclosure
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`agreement. The disclosure was thus not one which made Micrilor’s paper available to the
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`6
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`general public or even to any particular interested parties, and D-Link does not argue
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`otherwise, Rather, D-Link asserts that the Micrilor and Proxim did not share a common legal
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`interest regarding the patents, and that the disclosure was solely for commercial gain by
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`Micrilor. (See D-Link Motion at 7 , 9). This argument fails because the cases D-Link relies
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`upon address factually different situations than the one at issue.
`
`In the Matter of Certain Headboxes and Papermaking Machine Forming Sections for
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`the Continuous Production of Paper, and Components mereof, Inv. No. 337-TA-82, 1980 ITC
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`LEXIS 55 (Order No. 6 July 22, 1980), is distinguishable because it dealt not with a buyout or
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`merger of a company but rather with an attempt to induce a customer to place an order for
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`products. A sales contract for a particular product, uqlike a corporate acquisition of another
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`company, does not put the purchaser into the place of the selling company. Further, in
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`Headboxes, the disclosing party did not inform the potential customer of the privileged nature
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`of the communication until after it had been disclosed. Headboxes, 1980 ITC LEXIS 55 at
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`*lo. Micrilor clearly indicated that the information was not for public consumption prior to
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`any disclosure to Proxim. See Exhibit D at P 219990- 991.
`OakIndus. v. Zenith Indus., 1988 U.S. Dist. LEXIS 7985 (N.D. Ill. July 25, 1988),
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`does not provide any characterization of the documents or negotiations in question, but the
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`cases it relies upon are off-point for the issue in dispute here. Further, the highly restrictive
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`construction of the community of interest in Oak Indus. contradicts the express statement in
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`Contrary to D-Link’s assertion in its Motion, this document is a decision by an
`Administrative Law Judge, not the International Trade Commission, and is thus not an
`“endorsement” by the Commission.
`
`7
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`Duplan that “the fact that there may be an overlap of a commercial and a legal interest for a
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`third party does not negate the effect of the legal interest in establishing a community of
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`interest. I’ Duplan Corp., 397 F. Supp. at 1172. The construction of the privilege in Oak was
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`done specifically in reference to the narrow construction provided for by the Seventh Circuit.
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`Oak Indus., 1988 U.S. Dist. LEXIS 7985 at “12 (“In light of the Seventh Circuit’s admonition
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`to construe the privilege narrowly. . . ”). In analogous circumstances, however the Federal
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`Circuit has overturned--even in light of the Seventh Circuit’s construction of the privilege--a
`district court ruling where waiver was found on the grounds that “‘the entities . . . apparently
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`were bound only by the prospects of financial gain and heightened reputation.”’ In re the
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`Regents of the Univ. of California, 101 F.3d 1386, 1389 (Fed. Cir. 1996). The Federal
`
`Circuit reasoned:
`
`The district court erred in concliiding that Lilly and UC did not have an
`identical legal interest in the ‘877 patent and its foreign counterparts because “a
`patentee and a nonexclusive licensee do not share identical legal interests. I’ Lilly
`was more than a non-exclusive licensee, and shared the interest that UC would
`obtain valid and enforceable patents. UC is a university seeking valid and
`enforceable patents to support royalty income. Lilly is an industrial enterprise
`seeking valid and enforceable patents to support commercial activity. Valid and
`enforceable patents on the UC inventions are in the interest of both parties. See
`Duplan, 397 F. Supp. at 1172 (‘‘The fact that there may be an overlap of a
`commercial and a legal interest for athird party does not negate the effect of the
`legal interest in establishing a community of interest. ”).
`
`In re the Regents of the Univ. of California, 101 F.3d at 1390. D-Link’s reliance on Oak to
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`prop up the same argument regarding commercial interest rejected by the Federal Circuit is
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`thus lacking.
`
`The disclosure in Research Inst. for Med. and Chem., Inc. v. Wis. Alumni Research
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`Found., 114 F.R.D. 672, 677-78 (W.D. Wis. 1987), related to the validity of the patents to
`
`8
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`

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`which the third party had taken a nonexclusive license. Where the patentee disclosed
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`information to a licensee to whom it had no duty to warrant the validity of the patent and who
`also lacked any right to enforce the patent on behalf of the patentee, "the risk of loss . . .
`presented by a challenge to the validity of a WAFW patent or application . . . was substantially
`
`disparate in terms of legal effect." Id. at 678. In Union Carbide, the "negotiations" were
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`actually a dispute between a patentee and someone who later became a licensee over
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`inventorship. Union Carbide, 619 F. Supp. at 1050. The two parties were adversaries, and
`
`thus the legal interest of the negotiations there was wholly antagonistic and did not involve "the
`joint pursuit of a common interest." Id. SCM Corp. v. Xerox Corp. involved parties who were
`
`joint venturers, but the information shared was peripheral to the joint venture itself and the
`
`court held that the party to whom the disclosure of priviieged information was made was not a
`potential co-party to litigation relating io that information. SCM Corp., 70 F.R.D. at 513.
`
`Although the parties were negotiating a husiness proposition among themselves (a purchase by
`
`one party of the other party's shares in the joint venture), the negotiations were "not directed at
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`advancing the joint interest vis-a-vis the rest of the world," so that "on that issue" the parties
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`were adverse. Id. (emphasis added). The authority that D-Link cites thus fails to establish
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`why this court should throw aside the good faith efforts of Micrilor and Proxim in maintaining
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`the confidentiality of their attorney-client communications in order to protect the privilege.
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`D.
`
`CONCLUSION
`
`Because Micrilor and Proxim had a common legal interest at the time of the disclosure
`
`sufficient to protect the privilege of the Position Paper provided to Proxim, because
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`Attachment 20 was not a part of any commercial negotiation regarding the acquisition of
`
`9
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`Micrilor, and because D-Link has failed to make a sufficient showing to defeat Proxim's
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`assertion of privilege, D-Link's motion to compel should be DENIED.
`
`10
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`

`
`Dated: November 15;, 2001
`c
`-
`
`Respectfully submitted,
`& k M *
`I a
`i : e M i c h a u d , Jr.
`Alan L. Whitehurst
`Monte L. Bond
`( latherine B. Richardson
`Timothy A Molino
`Ryan P. Page
`I3URNS DOANE SWECKER & MATHIS, L.L.P.
`1737 King Street, Suite 500
`Alexandria, Virginia 223 14
`Telephone: (703) 836-6620
`Telecopier: (703) 836-2021
`
`( :ecilia H. Gonzalez
`IIOWREY SIMDN ARNOLD & WHITE, L.L.P.
`I 299 Pennsylvania Avenue, N . W .
`Washington, D. C . 20004
`Telephone: (202) 783-0800
`‘X’elecopier: (202) 383-6610
`
`( lounsel for Complainant Proxim, Inc.
`
`11
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`

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`CERTIFJCATE OF SERV ICE
`
`I, Mary C. Santen hereby certify that copies of PROXIM, INC.'S OPPOSITION TO
`RESPONDENT D-LINK'S MOTION TO COMPEL PRODUCTION OF THE "MICRILOR,
`INC.'S POSITION PAPER ON PATENTS AND IP DATED 8/31/99" AND
`"ATTACHMENT 20 TO THE DISCLOSURE SCHEDLJLE" were served this 15th day of
`November, 2001 as follows:
`
`The Honorable Donna R. Koehnke
`Secretary
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E. Street, SW, Room 112-A
`Washington, DC 20436
`
`The Honorable Delbert R. Terrill, Jr.
`Administrative Law Judge
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E. Street, SW, Suite 317
`Washington, DC 20436
`
`Benjamin D.M. Wood, Esquire
`Office of Unfair Import Investigations
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E. Street, SW, Suite 401
`Washington, DC 20436
`
`On Behalf of Respondents AmbiCom, Inc..,
`Acer Ne Web Corp., D-Link Systems, Inc. and
`D-Link Corporation and Intersil Corporation
`Geoffrey Mason, Esquire
`FINNEGAN, HENDERSON, FARABOW, GARRETT
`& DUNNER, LLP
`1300 I Street, NW
`Washington, DC 20005
`The Law Offices of S.J. Christine Yang
`Plaza Del Lago
`17220 Hewhope Street
`Suite 101
`Fountain Valley, CA 92708
`
`Original and Six Copies by Hand
`
`Two Copies by Hand
`
`One Copy by Hand
`
`One Copy by Hand
`
`One Copy by Federal Express
`
`

`
`CERTIFICATE-
`
`( CON'T.)
`
`On Behalf of Respondents Acer America
`Corporation, Ca bletron Systems, Inc.,
`Enterasys Networks, Inc., Melco, Inc., Ri&Yo
`Technology (USA), Inc., Tech Wovh, Inc.. and
`On Behalf of Intervenor Agere Systems Inc. :
`George F. Pappas, Esquire
`Gary M. Hnath, Esquire
`Paul Daebeler, Esquire
`Eric Namrow, Esquire
`VENABLE, BAETER, HOWARD & CWILETTI, LLP
`1201 New York Avenue, NW
`Suite 1000
`Washington, DC 20005
`
`On Behalf of Respondent Addtron Technology
`Company, Ltd. :
`Richard Vasquez, Esquire
`Morgan, Miller & Blair
`1676 North California Blvd.
`Suite 200
`Walnut Creek, CA 94596
`
`On Behalf of Respondents The Linksys Gvoup,
`Inc. and AmbiCom, Inc.:
`Jeffrey C.P. Wang, Esquire
`THE LAW OFFICES OF JEFFREY C.P. WAN(;
`1201 Dove Street, Suite 485
`Newport Beach, CA 92660
`
`One Copy Hand
`
`One Copy by Federal Express
`
`One Copy by Federal Express
`
`

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`EXHIBIT A
`EXHIBIT A
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`FROM MICRILOR INC 7812d60157
`I
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`MUTUAL
`N ISC CLOSURE AGREE&
`
`9-38-1999 3:53PM
`
`.
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`c
`
`place of business at
`
`Mountain View, Cdifornia 94043.
`
`1
`wHl3IEAS, the patties des* to exchange information conside td proprietary, and
`WHEREAS, the patties rn
`desire to use this Agreement as the contract to
`transactions involvhg the exchange
`
`t
`
`and vduablc consideration. the
`agree lls folIows:
`Each parry
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`I.
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`righrs, and any specifica
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`P. P
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`obtained under this Ag cement-
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`r
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`Page 2
`
`! PROXIM CONFIDENTIAL BUFINESS
`
`INFORICMTION, SUBJECT TO
`PRClTPrTTVR ORnFR
`
`I
`
`P 219990
`
`-
`
`

`
`- - - ------
`
`9-30-1999 3:53PM
`
`FROM MICRILOR INC 7B12d6815-f
`
`P. 5
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`i
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`e.
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`d. becomes lgwfirlly ava;
`disdosing party; or
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`prior to receipt h m tl
`5, Each parsy shall safeguwc
`its possession during this
`party &all cake all reasoi
`violated by any person 1
`Information m written, 1
`however stored or GIed, si
`6. No rights or obligations c
`Agrternent. No license od
`party hereunder to use in i
`or which may be obtained
`
`. 7. This Agretmcnr sets fod
`the subject matter k c t o i
`expressed. impiied, writt
`agreement duly signed by
`
`8. This Agreement Will be g(
`
`9. This Aptemax and the (
`date hereof.
`IN WTNESS WHEREQF,I
`signed in its name and on its bchIf:
`
`i,
`
`wee other than the
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`I
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`b k to the receiving party brn a
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`y's powision or was known to
`disr;losiog paaty.
`
` Confidential
`ye Other p '
`s
`greement against
`bIe stcps to ensure that the pro{iions of this Agrcernenr ar
`icr its control or in its stpyict.1 All copies of the Confidc
`rphic or other tangible form, +eluding all computer prog
`1 t;>t retuned to the disclosbg p
`
`f
`
`cr than those expressly wittd
`~thcr right is h m b y granted,
`y way any patent,
`r, or which is or may bc
`
`he entire agFctmexrt and yndcrsdndings between the parties
`d suptrsedcs all previous ggrcxm ns bcrwetn the parties, wh
`or oral, This Agrterncnt can only bc modified by a WI
`mns amharked fo sign a p e m e IS on behalf of each party.
`:mcd by the laws of the Stqtc of
`I alifornia,
`shall e end for three (3) ytan fror
`
`ligations imposcd h&n
`
`:h of &e @es w this
`its representative
`
`has cwtcd this Agreement
`as of h e date bcfo
`
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`fin
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`I
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`Date
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`I
`
`Title
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`Date
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`...
`
`- 2 -
`pROZXM CONFIDENTIAL BUGINESS
`l N ~ O l ~ T I O N , SUBJECT TO
`ounmr-rivw ORDER
`
`P 219991
`
`

`
`EXHIBIT B
`EXHIBIT B
`
`

`
`9-30-1 999 3 : 52PM
`
`FROM MICRILOR I N C 7812460157
`
`P. 3
`
`MCRILOR, hc.
`
`Tok (781) 246-0103
`
`Kevin,
`
`L i s t e d below are some
`included i n a J o i n t L e
`
`Fu: (781) 246-0157
`
`eel should be
`
`to explore
`
`Whereas Proxim, Inc. a
`possibilities for a me
`carry out exploratory
`following understandin
`sincerely interested id exploring t h e possibilities for a merg
`our two companies, e agree t h a t :
`Neither company w i 1 attempt to recruit ny employee of th
`o t h e r for a
`of 2 years if the pro osed merger is
`unconsummated;
`
`-
`
`Neither
`
`i
`i
`
`1 use the technical or marketing
`d of the other during these exchanges o
`to g a i n an advantage against the other
`
`3
`
`c
`
`r
`
`consummated.
`
`a merger i
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`

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`EXHIBIT C
`EXHIBIT C
`
`

`
`Tel: (781) 246-0103
`
`MICRILOR, Inc.
`
`SIGNAL PROCESSING TECHNOLOGY
`17 LAKESIDE OFFICE PARK
`WAKEFIELD, MA 01880
`
`Action by Stockholders
`In Lieu of a Special Meeting
`
`Fa: (781) 246-0157
`
`December 29, 1999
`
`Pursuant to Section 228 of the General Corporation Law of the State of Delaware, the
`
`undersigned, being all of the stockholders of Micrilor, Inc., a Delaware corporation (the
`
`“Corporation”), do hereby consent to the following actions, which shall constitute a special
`
`meeting of the stockholders of the Corporation.
`
`The adoption of the fallowing resolutions:
`
`RESOLVED: That the Corporation merge with Proxim; Inc. C‘Pr~xim’~), a Delaware
`corporation, such merger (the “Merger”) to be accomplished pursuant to an
`Agreement and Plan of Reorganization (the “Merger Agreement”) in
`substantially in the form attached as Exhibit A.
`
`RESOLVED: That the proposed Merger, the Merger Agreement and the transactions
`contemplated thereby, be and they hereby are approved, and that the officers
`of the Corporation be, and each of them hereby is, authorized and directed to
`execute and deliver the Merger Agreement, in the name and on behalf of the
`Corporation, with such changes or additions, if any, as the oficers executing
`the same, in their sole discretion, shall approve, such approval to be
`conclusively evidenced by the execution and delivery thereof.
`
`RESOLVED: That, upon the execution and delivery of the Merger Agreement on behalf of
`each party thereto, and subject to the approval of the Merger and the
`adoption of the Merger Agreement by the stockholders of the Corporation, to
`take any and all action as may be necessary or desirable in order to perform
`the Merger Agreement and effect the transactions contemplated thereby,
`including, but not limited to, execution and filing of a Certificate of Merger
`with the Delaware Secretary of State in substantially the form attached
`hereto as Exhibit B.
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`PROXIM CONFIDENTIAL BUSINESS
`INFORMATION, SUBJECT TO
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`P 219223
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`

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`RESOLVED: That the Micnlor, Inc. 401(k) Plan (the “Retirement Plan”), be and hereby
`is frozen and terminated, effective as of December 3 1, 1999, and that the
`officers of the Corporation, acting singly or jointly, be, and hereby are,
`authorized and directed in the name of and on behalf of the Corporation to
`execute such documents as the officers and each of them shall deem
`necessary or appropriate in his sole or their sole discretion, his or their
`execution thereof to be conclusive evidence of the approval granted thereby.
`
`RESOLVED: That the Corporation adopt the Termination Amendment to the Retirement
`Plan in the form attached hereto as Exhibit C effective as of the dates recited
`therein.
`
`RESOLVED: To adopt, ratify and confirm all actions taken and things done by the
`directors and the officers of the Corporation, or any of them, including all
`actions taken and things done in contemplation of the foregoing
`Resolutions, as the same appear of record or in the usual course of
`business to date, including all actions taken by any of them in good faith
`and in the reasonable belief that such actions were or would be in the best
`interests of the Corporation, and including all actions and elections by
`directors at all meetings, whether or not such meetings were properly
`called, whether or not a quorum was present, or whether or not such
`actions and elections were taken or made by the requisite number of
`Directors, whether or not Directors and officers were properly elected and
`qualified, and whether or not such actions and elections were otherwise
`irregular.
`
`RESOLVED: That the officers of the Corporation be, and each of them hereby is,
`authorized, enipowered and directed to do or cause to be done any and all
`other acts and things and to execute and deliver any and all further
`agreements, instruments or documents as such officer or officers may deem
`necessary or appropriate to carry into effect the full intent and purpose of the
`foregoing Resolutions, the taking of any such actions or the execution or
`delivery of any such agreements, instruments or documents by such officer
`or officers to be conclusive evidence that the same were authorized by this
`Resolution.
`
`[REMAINER OF PAGE INTENTIONALLY LEFT BLANK]
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`P 219224