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Exhibit 8.1
[Letterhead of Cravath, Swaine & Xxxxx]
February 22, 2001
Amended and Restated Agreement and Plan of Merger,
Dated as of January 26, 2001,
Among Xxxxxxx & Xxxxxxx, HP Merger Sub, Inc. and
Heartport, Inc.
Ladies and Gentlemen:
We have acted as counsel for Xxxxxxx & Xxxxxxx, a New Jersey corporation
("Xxxxxxx & Xxxxxxx"), in connection with the proposed merger (the "Merger") of
HP Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Xxxxxxx & Xxxxxxx ("Sub"), with and into Heartport, Inc., a Delaware corporation
("Heartport"), pursuant to an Amended and Restated Agreement and Plan of Merger,
dated as of January 26, 2001, among Xxxxxxx & Xxxxxxx, Sub and Heartport (the
"Merger Agreement").
In providing our opinion, we have examined the Merger Agreement, the
registration statement on Form S-4 (which contains a proxy statement/prospectus)
(the "Registration Statement"), filed with the Securities and Exchange
Commission (the "SEC") on February 22, 2001, and such other documents and
corporate records as we have deemed necessary or appropriate for purposes of our
opinion. In addition, we have assumed that (i) the Merger will be consummated in
accordance with the provisions of the Merger Agreement and the Registration
Statement, (ii) the statements concerning the Merger set forth in the Merger
Agreement and the Registration Statement are true, complete and correct, (iii)
the representations made by Xxxxxxx & Xxxxxxx and Heartport, in their respective
letters delivered to us for purposes of this opinion (the "Representation
Letters") are true, complete and correct and will remain true, complete and
correct at all times up to and including the Effective Time (as defined in the
Merger Agreement) and (iv) any representations made in the Representation
Letters "to the knowledge of" or similarly qualified are correct without such
qualification. If any of the above described assumptions are untrue for any
reason or if the Merger is consummated in a manner that is different from the
manner in which it is described in the Merger Agreement or the Registration
Statement, our opinion as expressed below may be adversely affected and may not
be relied upon.
Based upon the foregoing, we are of opinion that the discussion contained
in the Registration Statement under the caption "The Merger -- Material United
States Federal Income Tax Consequences of the Merger," subject to the
limitations, qualifications and assumptions described therein, sets forth the
material United States Federal income tax considerations applicable to the
Company's stockholders in the Merger. Because this opinion is being delivered
prior to the Effective Time, it must be considered prospective and dependent on
future events.
Our opinion is based on current provisions of the Internal Revenue Code of
1986, as amended, Treasury Regulations promulgated thereunder, published
pronouncements of the Internal Revenue Service and case law, any of which may be
changed at any time with retroactive effect. Any change in applicable laws or
the facts and circumstances surrounding the Merger, or any inaccuracy in the
statements, facts, assumptions or representations upon which we have relied, may
affect the continuing validity of our opinion as set forth herein. We assume no
responsibility to inform you of any such change or inaccuracy that may occur or
come to our attention. Finally, our opinion is limited to the tax matters
specifically covered hereby, and we have not been asked to address, nor have we
addressed, any other tax consequences of the Merger.
This opinion is being furnished to you solely for its use in connection
with the Registration Statement. We consent to the filing of this opinion as
Exhibit 8.1 to the Registration Statement and to the reference to our firm name
therein. In giving this consent, we do not admit that we are within the category
of
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persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules or regulations of the SEC promulgated thereunder.
Very truly yours,
/s/ Cravath, Swaine & Xxxxx
Xxxxxxx & Xxxxxxx
Xxx Xxxxxxx & Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Office of General Counsel
