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EXHIBIT 8.1
August 10, 2000
Board of Directors
OneMain.com, Inc.
1860 Michael Faraday Drive
Suite 200
Reston, Virginia 20190
Ladies and Gentlemen:
This opinion is being delivered to you in connection with the filing, on
or about the date hereof, with the Securities and Exchange Commission of the
Registration Statement on Form S-4, dated August 10, 2000 (the "Registration
Statement") of Earthlink, Inc. ("Earthlink"), a Delaware corporation,
including the Proxy Statement for OneMain.com, Inc. ("OneMain"), a Delaware
corporation, and the Prospectus for Earthlink. The Registration Statement
relates to the Agreement and Plan of Merger, dated as of June 7, 2000 and
amended by First Amendment in Agreement and Plan of Merger, dated as of
August 9, 2000 (as amended, the "Agreement"), by and among Earthlink, OM
Combination, Inc. ("MergerSub"), a Delaware corporation and wholly-owned
subsidiary of Earthlink, and OneMain. Pursuant to the Agreement, depending on
the closing price of EarthLink common stock on the day prior to the closing
of the proposed merger, either OneMain will merge with and into MergerSub or
MergerSub will merger with and into OneMain (the "Merger").
The opinion set forth in this letter is based on relevant provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations
thereunder (including proposed and temporary Regulations), and interpretations
of the foregoing as expressed in court decisions, legislative history, and
existing administrative rulings and practices of the Internal Revenue Service
(including its practices and policies in issuing private letter rulings, which
are not binding on the Internal Revenue Service except with respect to a
taxpayer that receives such a ruling), all as of the date hereof. These
provisions and interpretations are subject to change, which may or may not be
retroactive in effect, that might result in modifications of our opinion. Our
opinion does not foreclose the possibility of a contrary determination by the
Internal Revenue Service or a court of competent jurisdiction, or of a contrary
position by the Internal Revenue Service or the Treasury Department in
regulations or rulings issued in the future.
In rendering our opinion, we have made such factual and legal inquiries as
we have deemed necessary or appropriate for purposes of our opinion. For
purposes of rendering our opinion, however, we have not made an independent
investigation or audit of the facts set forth in the Registration Statement. We
have assumed, with your consent, that all of the representations and statements
set forth in the documents that we reviewed (including, without limitation, the
Registration Statement) are true and correct, and each of the obligations
imposed by any such document on the parties thereto has been and will be
performed or satisfied in accordance with its terms. Further, we have assumed
the genuineness of all
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Board of Directors
OneMain.com, Inc.
August 10, 2000
Page 2
signatures, the proper execution of all documents, the authenticity of all
documents submitted to us as originals, the conformity to originals of documents
submitted to us as copies, and the authenticity of the originals from which any
copies were made.
Based upon, subject to, and limited by the assumptions and qualifications
set forth herein, we are of the opinion that the discussion in the Registration
Statement under the heading "Material United States Federal Income Tax
Consequences," to the extent such discussion describes applicable federal income
tax law, is correct in all material respects, as of the date hereof.
In addition to the assumptions set forth above, this opinion is subject to
the exceptions, limitations and qualifications set forth below:
1. This opinion represents and is based upon our best judgment regarding
the application of relevant current provisions of the Code and interpretations
of the foregoing as expressed in existing court decisions, administrative
determinations (including the practices and procedures of the Internal Revenue
Service in issuing private letter rulings, which are not binding on the Internal
Revenue Service except with respect to the taxpayer that receives such a ruling)
and published rulings and procedures all as of the date hereof. An opinion of
counsel merely represents counsel's best judgment with respect to the probable
outcome on the merits and is not binding on the Internal Revenue Service or the
courts. There can be no assurance that positions contrary to our opinion will
not be taken by the Internal Revenue Service, or that a court considering the
issues would not hold contrary to such opinion. Furthermore, no assurance can be
given that future legislative, judicial or administrative changes, on either a
prospective or retroactive basis, would not adversely affect the accuracy of the
opinion expressed herein. Nevertheless, we undertake no responsibility to advise
you of any new developments in the law or in the application or interpretation
of the federal income tax laws.
2. This letter addresses only the specific tax opinion set forth above.
This letter does not address any other federal, state, local or foreign tax
consequences that may result from the Merger or any other transaction (including
any transaction undertaken in connection with the Merger).
This opinion is provided to OneMain only, and without our prior consent,
may not be relied upon, used, circulated, quoted or otherwise referred to in any
manner by any person, firm, governmental authority or entity whatsoever other
than reliance thereon by the holders of OneMain common stock. Notwithstanding
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Board of Directors
OneMain.com, Inc.
August 10, 2000
Page 3
the prior sentence, we hereby consent to the use of the opinion letter as an
exhibit to the Registration Statement and to the use of our name in the
Registration Statement. In giving the consent, we do not thereby admit that we
are an "expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
Hogan & Hartson L.L.P.
