Menlo Park, California 94025 Tel: +1.650.328.4600 Fax: +1.650.463.2600
Exhibit 8.1
| 00 Xxxxx Xxxxx | ||||
| Xxxxx Xxxx, Xxxxxxxxxx 00000 | ||||
| Tel: x0.000.000.0000 Fax: x0.000.000.0000 | ||||
| xxx.xx.xxx | ||||
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July 29, 2009
Re: Agreement and Plan of Merger by and among HeartWare International, Inc., Thoratec
Corporation, Xxxxxx Merger Sub I, Inc. and Xxxxxx Merger Sub II, Inc., dated as of February 12,
2009
Ladies and Gentlemen:
We are acting as counsel to Thoratec Corporation, a California corporation (“Thoratec”), in
connection with the proposed merger (the “Merger”) of Xxxxxx Merger Sub I, Inc., a Delaware
corporation and wholly-owned subsidiary of Thoratec (“Merger Sub I”) with and into HeartWare
International, Inc., a Delaware corporation (“HeartWare”) (the “Merger”), and, if applicable, the
subsequent merger of HeartWare with and into Xxxxxx Merger Sub II, Inc., a Delaware corporation and
wholly-owned subsidiary of Thoratec (“Merger Sub II”) (the “Second Merger”), pursuant to the
Agreement and Plan of Merger dated as of February 12, 2009, by and among HeartWare, Thoratec,
Merger Sub I and Merger Sub II (the “Merger Agreement”). This opinion is being delivered in
connection with Thoratec’s registration statement on Form S-4, as amended, relating to the proposed
Merger pursuant to the Merger Agreement (the “Registration Statement”), to which this opinion
appears as an exhibit. Capitalized terms not defined herein have the meanings specified in the
Merger Agreement.
In rendering our opinion, we have examined and, with your consent, are expressly relying upon
(without any independent investigation or review thereof) the truth and accuracy of the statements,
covenants, representations and warranties contained in (i) the Merger Agreement (including any
exhibits and schedules thereto), (ii) the Registration Statement, (iii) the tax representation
letters to be delivered by Thoratec and HeartWare and (iv) such other documents and corporate
records as we have deemed necessary or appropriate for purposes of our opinion.
In addition, we have assumed, with your consent, that:
1. Original documents (including signatures) are authentic and documents submitted to us
as copies conform to the original documents;
2. The Merger and, if applicable, the Second Merger will be consummated in the manner
contemplated by, and in accordance with the provisions of, the Merger Agreement and the
Registration Statement, and the Merger and, if applicable, the Second Merger will be effective
under the laws of the State of Delaware;
3. All statements, descriptions and representations contained in any of the documents
referred to herein or otherwise made to us are true, complete and correct, and no actions have been
taken or will be taken which are inconsistent with such statements, descriptions or representations
or which make any such statements, descriptions or representations untrue, incomplete or incorrect
at the Effective Time;
4. Any statements made in any of the documents referred to herein “to the knowledge of” or
similarly qualified are true, complete and correct and will continue to be true, complete and
correct at all times up to and including the Effective Time, in each case without such
qualification; and
5. The parties have complied with and, if applicable, will continue to comply with, the
covenants contained in the Merger Agreement and the Registration Statement.
Based upon and subject to the foregoing, and subject to the qualifications and limitations
stated in the Registration Statement, the statements in the proxy statement/prospectus constituting
part of the Registration Statement under the caption “The Merger—Material U.S. Federal Income Tax
Consequences,” constitute the opinion of Xxxxxx & Xxxxxxx LLP as to the material United States
federal income tax consequences of the Merger and, if applicable, the Second Merger applicable to
United States holders of HeartWare common stock.
In addition to the matters set forth above, this opinion is subject to the exceptions,
limitations and qualifications set forth below.
1. This opinion represents our best judgment regarding the application of United States
federal income tax laws arising under the Internal Revenue Code of 1986, as amended, existing
judicial decisions, administrative regulations and published rulings and procedures. Our opinion is
not binding upon the Internal Revenue Service or the courts, and there is no assurance that the
Internal Revenue Service will not assert a contrary position. 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 conclusions stated herein.
Nevertheless, we undertake no responsibility to advise you of any new developments in the
application or interpretation of the United States federal income tax laws.
2. No opinion is expressed as to any transaction other than the Merger and the Second
Merger as described in the Merger Agreement, or to any transaction whatsoever, including the
Merger, if, to the extent relevant to our opinion, either all the transactions described in the
Merger Agreement are not consummated in accordance with the terms of the Merger Agreement and
without waiver or breach of any provisions thereof or all of the representations, warranties,
statements and assumptions upon which we have relied are not true and accurate at all relevant
times.
This opinion is rendered only to you, and is solely for your use in connection with the filing
by Thoratec of the Registration Statement upon the understanding that we are not hereby assuming
professional responsibility to any other person whatsoever. This opinion may not be relied upon by
you for any other purpose, or furnished to, quoted to, or relied upon by any other
person, firm or
corporation for any purpose, without our prior written consent, except that this opinion may be
furnished or quoted to your legal
counsel and to judicial regulatory authorities having jurisdiction over you, provided, however,
that this opinion may be relied upon by persons entitled to rely on it pursuant to applicable
provisions of federal securities law. We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm name in the proxy statement/prospectus
therein under the captions “The Merger—Material U.S. Federal Income Tax Consequences” and “Legal
Matters.” In giving this consent, we do not admit that we are within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules or
regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Xxxxxx & Xxxxxxx LLP
