Exhibit 8.2
January 6, 2000
Board of Directors
MindSpring Enterprises, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx, X.X.
Suite 400
Atlanta, GA 30309
Gentlemen/Ladies:
This opinion is being delivered to you in connection with the
Agreement and Plan of Reorganization (the "Agreement"), dated as of September
22, 1999, by and among WWW Holdings, Inc. ("Newco"), a Delaware corporation,
EarthLink Network, Inc. ("EarthLink"), a Delaware corporation, and MindSpring
Enterprises, Inc. ("MindSpring"), a Delaware corporation. Pursuant to the
Agreement, EarthLink will merge with and into Newco (the "EarthLink Merger")
and, immediately thereafter, MindSpring will merge with and into Newco (the
"MindSpring Merger").
In connection with the preparation of this opinion, we have
examined and with your consent relied upon (without any independent
investigation or review thereof) the following documents (including all
amendments, exhibits and schedules thereto): (1) the Agreement; (2) the
Registration Statement on Form S-4 filed with the Securities and Exchange
Commission (the "Registration Statement") and/or the Proxy Statement/Prospectus
of EarthLink and MindSpring; (3) representations and certifications made to us
by MindSpring and Newco as to matters of fact; and (4) such other instruments
and documents related to the formation, organization and operation of EarthLink,
MindSpring and Newco or to the consummation of the EarthLink Merger or the
MindSpring Merger and the transactions contemplated thereby as we have deemed
necessary or appropriate. (1)/
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(1)/ All capitalized terms used herein and not otherwise defined shall have the
same meaning as they have in the Agreement. All section references, unless
MindSpring Enterprises, Inc.
January 6, 2000
Page 2
THE PROPOSED TRANSACTION
Based solely upon our review of the documents set forth above,
and upon such information as MindSpring and Newco have provided to us (which we
have not attempted to verify in any respect), and in reliance upon such
documents and information, we understand that the proposed transaction and the
relevant facts with respect thereto are as follows:
EarthLink is a leading Internet service provider providing
nationwide Internet access and related value-added services to its individual
and business members. MindSpring is a leading national Internet service
provider, focusing on serving individuals and small businesses. Its primary
service offerings are dial-up Internet access and business services, which
MindSpring offers in various price and usage plans designed to meet the needs of
its members. Newco is a newly formed corporation that has not, to date,
conducted any activities other than those incident to its formation, the
execution of the Agreement and the preparation of the Proxy
Statement/Prospectus.
It is believed that the combined operations of EarthLink and
MindSpring will offer strategic and financial benefits to both EarthLink and
MindSpring. In reaching this decision, the EarthLink and MindSpring boards of
directors considered a number of factors, including: (1) the ability to take
advantage of the greater combined resources and efforts of the two companies
under one brand to accelerate member growth; (2) the increased opportunities
that could be available to a larger, combined company, including potentially
greater leverage with vendors, network providers and content providers, the
opportunity to become a leading Internet service provider portal site and the
opportunity to develop alternative revenue streams; and (3) significant
opportunities for cost savings, revenue growth, technological development and
other benefits. Thus, it is proposed that pursuant to the Agreement and the laws
of the State of Delaware, EarthLink will merge with and into Newco and,
immediately thereafter, MindSpring will merge with and into Newco. Newco will be
the surviving corporation resulting from the EarthLink Merger and the MindSpring
Merger and will change its name to EarthLink Network, Inc. at the Effective
Time.
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otherwise indicated, are to the Internal Revenue Code of 1986, as amended (the
"Code").
MindSpring Enterprises, Inc.
January 6, 2000
Page 3
Pursuant to the MindSpring Merger, each share of MindSpring
Common Stock outstanding immediately prior to the Effective Time will be
converted into and become one (1) share of Newco Common Stock, and each
outstanding option, warrant and other right to purchase, or which is convertible
into, MindSpring Common Stock will be converted into an option, warrant or other
right, as the case may be, having substantially identical terms and conditions,
to purchase or be convertible into one (1) share of Newco Common Stock. There
will be no dissenters' rights in the MindSpring Xxxxxx.
ASSUMPTIONS AND REPRESENTATIONS
In connection with rendering this opinion, we have assumed or
obtained representations (and, with your consent, are relying thereon, without
any independent investigation or review thereof, although we are not aware of
any material facts or circumstances contrary to or inconsistent therewith) that:
1. All information contained in each of the documents we have
examined and relied upon in connection with the preparation of this opinion is
accurate and completely describes all material facts relevant to our opinion,
all copies are accurate and all signatures are genuine. We have also assumed
that there has been (or will be by the Effective Time of the MindSpring Merger)
due execution and delivery of all documents where due execution and delivery are
prerequisites to the effectiveness thereof.
2. The MindSpring Merger will be consummated in accordance
with applicable state law and will qualify as a statutory merger under
applicable state law.
3. All factual representations made to us by MindSpring and
Newco are true, correct, and complete in all material respects. Any
representation or statement made "to the best of knowledge" or similarly
qualified is correct without such qualification.
4. The MindSpring Merger will be consummated in accordance
with the Agreement and as described in the Proxy Statement/Prospectus (including
satisfaction of all covenants and conditions to the obligations of the parties
without amendment or waiver thereof); MindSpring and Newco will comply with all
reporting obligations with respect to the MindSpring Merger required under the
Code and the Treasury Regulations thereunder; and the Agreement and all other
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January 6, 2000
Page 4
documents and instruments referred to therein or in the Proxy
Statement/Prospectus are valid and binding in accordance with their terms.
OPINION - FEDERAL INCOME TAX CONSEQUENCES
Based upon and subject to the assumptions and
qualifications set forth herein, it is our opinion that for federal income
tax purposes: (1) the MindSpring Merger will qualify as a reorganization
within the meaning of Section 368(a) of the Code; (2) both MindSpring and
Newco will be "a party to the reorganization" within the meaning of Code
Section 368(b); and (3) the discussion in the Registration Statement under
the heading "Federal Income Tax Consequences," to the extent such discussion
describes applicable federal income tax law applicable to the MindSpring
Merger, 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 (the "IRS") in issuing private letter rulings, which
are not binding on the IRS 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 IRS or the courts.
There can be no assurance that positions contrary to our opinions will not be
taken by the IRS, or that a court considering the issues would not hold contrary
to such opinions. MindSpring has not requested a ruling from the IRS (and no
ruling will be sought) as to any of the federal income tax consequences
addressed in this 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 opinions set
forth above. This letter does not address any other federal, state, local or
foreign tax consequences that may result from the MindSpring Merger or any other
transaction
MindSpring Enterprises, Inc.
January 6, 2000
Page 5
(including the EarthLink Merger or any other transaction undertaken in
connection with the MindSpring Merger).
3. We express no opinion regarding, among other things, the
tax consequences of the MindSpring Merger (including the opinion set forth
above) as applied to specific stockholders of MindSpring that may be relevant to
particular classes of MindSpring shareholders, such as dealers in securities,
corporate shareholders subject to the alternative minimum tax, foreign persons,
and holders of shares acquired upon exercise of stock options or in other
compensatory transactions.
4. Our opinion set forth herein is based upon the description
of the contemplated transactions as set forth above in the section captioned
"The Proposed Transaction," the Agreement and the Proxy Statement/Prospectus. If
the actual facts relating to any aspect of the transactions differ from this
description in any material respect, our opinion may become inapplicable. No
opinion is expressed as to any transaction other than those set forth in the
section captioned "The Proposed Transaction," the Agreement and the Proxy
Statement/Prospectus or to any transaction whatsoever, including the Merger, if
all the transactions described in the section captioned "The Proposed
Transaction," the Agreement and the Proxy Statement/Prospectus are not
consummated in accordance with the terms of the section captioned "The Proposed
Transaction," the Agreement and the Proxy Statement/Prospectus and without
waiver or breach of any material provision thereof or if all of the
representations, warranties, statements and assumptions upon which we relied are
not true and accurate at all relevant times. In the event any one of the
statements, representations, warranties or assumptions upon which we have relied
to issue this opinion is incorrect, our opinion might be adversely affected and
may not be relied upon.
This opinion is provided to MindSpring 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 MindSpring or the MindSpring
shareholders. Notwithstanding 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
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January 6, 2000
Page 6
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.
Sincerely yours,
/s/ XXXXX & XXXXXXX L.L.P.
