EXHIBIT 8.1
[STRADLING YOCCA CARLSON & RAUTH LETTERHEAD]
May 23, 2003
Computer Motion, Inc.
130-B Cremona Drive
Santa Barbara, California 93117
Ladies and Gentlemen:
We have acted as counsel for Computer Motion, Inc., a Delaware
corporation ("Computer Motion"), in connection with the preparation and
execution of the Agreement and Plan of Merger, dated as of March 7, 2003 (the
"Merger Agreement") among Computer Motion, Intuitive Surgical, Inc., a Delaware
corporation ("Intuitive Surgical"), and Intuitive Merger Corporation, a Delaware
corporation, a newly formed and wholly-owned subsidiary of Intuitive Surgical
("Merger Sub"). Pursuant to the Merger Agreement, Merger Sub will merge with and
into Computer Motion (the "Merger") with Computer Motion as the surviving
corporation, which will become a wholly-owned subsidiary of Intuitive Surgical.
Unless otherwise defined, capitalized terms referred to herein have the meanings
set forth in the Merger Agreement. All section references, unless otherwise
indicated, are to the Internal Revenue Code of 1986, as amended (the "Code").
You have requested our opinion regarding certain United States federal
income tax consequences of the Merger. In delivering this opinion, we have
reviewed and relied upon the facts, statements, descriptions and representations
set forth in the Registration Statement on Form S-4 filed by Intuitive Surgical
with the Securities and Exchange Commission, Registration No. 333-104093 (which
contains a Joint Proxy Statement/Prospectus) (the "Registration Statement"), the
Merger Agreement (including exhibits) and such other documents pertaining to the
Merger as we have deemed necessary or appropriate. We have also received and
relied upon certificates of officers of Computer Motion, Merger Sub and
Intuitive Surgical (the "Officers' Certificates"). We have assumed the
representations referred to in this letter remain accurate in all respects that
are material to this opinion at all relevant times and we have made no
investigation or inquiry whatsoever with respect to the accuracy of any such
representations. Any variance of the actual facts or the representations
contained in the Officers' Certificates could materially affect our opinion as
expressed herein and possibly render it wholly or partially inapplicable.
Computer Motion Inc.
May 7, 2003
Page Two
In connection with rendering this opinion, we have also assumed
(without any independent investigation) that:
1. Original documents (including signatures) are authentic, documents
submitted to us as copies conform to the original documents, and there has been
(or will be by the Effective Time) due execution and delivery of all documents
where due execution and delivery are prerequisites to effectiveness thereof;
2. Any statement made in any of the documents referred to herein as
being "to the best of the knowledge" or any other knowledge qualifier of any
person or party, is correct without such qualification;
3. All statements, descriptions and representations contained in any of
the documents referred to herein or otherwise made to us are true and correct in
all material respects and no actions have been (or will be) taken which are
inconsistent with such representations;
4. The Merger will be reported by Computer Motion and Intuitive
Surgical on their respective federal income tax returns in a manner consistent
with the opinion set forth below; and
5. The arrangement governed by that certain Loan and Security
Agreement, dated as of March 7, 2003, entered into between Computer Motion and
Intuitive Surgical (the "Bridge Loan"), will be treated as indebtedness of
Computer Motion and not as an equity interest in Computer Motion for federal
income tax purposes.
Based on our examination of the foregoing items and subject to the
assumptions, exceptions, limitations and qualifications set forth herein, we are
of the opinion that, if the Merger is consummated in accordance with the Merger
Agreement (and without any waiver, breach or amendment of any of the provisions
thereof) and the statements of fact set forth in the Officers' Certificates are
true and correct as of the date hereof, on the date on which the Registration
Statement is deemed effective under the Securities Act of 1933, as amended (the
"Securities Act") by the Commission, and at the Effective Time, then, for
federal income tax purposes, the Merger will qualify as a "reorganization" as
defined in Section 368(a) of the Code.
This opinion represents and is based upon our best judgment regarding
the application of federal income tax laws arising under the Code, 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 federal income tax
laws.
Computer Motion Inc.
May 7, 2003
Page Three
This opinion addresses only the classification of the Merger as a
reorganization under Section 368(a) of the Code. This opinion 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), specifically including any determination as to the
status of the Bridge Loan as debt or equity for federal income tax purposes, and
any tax consequences associated with the resolution of the intellectual property
litigation (more fully described in the Registration Statement) as a result of
the Merger.
In the event any one of the statements, representations, warranties or
assumptions upon which we have relied to issue this opinion is incorrect
(including but not limited to the assumption that the Bridge Loan will be
treated as debt under federal income tax principles), our opinion might be
adversely affected and may not be relied upon.
This opinion has been delivered to you solely for the purpose of being
included as an exhibit to the Registration Statement. It may not be relied upon
for any other purpose or by any person other than the addressee and its
stockholders, without our prior written consent. We hereby consent to the filing
of this opinion as an exhibit to the Registration Statement, and to the use of
our name under the headings "Material United States Federal Income Tax
Consequences to the Merger" and "Legal Matters" in the Registration Statement.
In giving this consent, however, we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act, or the rules or regulations promulgated thereunder, or that we are experts
with respect to any portion of the Registration Statement within the meaning of
the term "experts" as used in the Securities Act, or the rules and regulations
promulgated thereunder.
Very truly yours,
/s/ STRADLING YOCCA CARLSON & RAUTH