-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HKqIWb00h7oYlJwmwdZnAsEN1sfO8XInYnY8V9m2pAST32R8MqCOFeueNngsIckO Vw/g0sBGwVO27Xlw+LTMEA== 0000912057-01-542083.txt : 20020412 0000912057-01-542083.hdr.sgml : 20020412 ACCESSION NUMBER: 0000912057-01-542083 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20011205 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INDEPENDENT BANK CORP CENTRAL INDEX KEY: 0000776901 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 042870273 STATE OF INCORPORATION: MI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-72646 FILM NUMBER: 1807019 BUSINESS ADDRESS: STREET 1: 288 UNION STREET CITY: ROCKLAND STATE: MS ZIP: 02370 BUSINESS PHONE: 7818786100 MAIL ADDRESS: STREET 1: 288 UNION STREET CITY: ROCKLAND STATE: MS ZIP: 02370 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INDEPENDENT CAPITAL TRUST III CENTRAL INDEX KEY: 0001161763 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 137307281 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-72646-01 FILM NUMBER: 1807020 BUSINESS ADDRESS: STREET 1: C/O BANK OF NEW YORK STREET 2: 101 BARCLAY STREET CITY: NEW YORK CITY STATE: NY ZIP: 10286 BUSINESS PHONE: 7039182371 MAIL ADDRESS: STREET 1: C/O BANK OF NEW YORK STREET 2: 101 BARCLAY STREET CITY: NEW YORK CITY STATE: NY ZIP: 10286 S-3/A 1 a2064604zs-3a.txt FORM S-3/A AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 5, 2001 REGISTRATION NO. 333-72646, NO. 333-72646-01 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------------------- PRE-EFFECTIVE AMENDMENT NO. 2 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- INDEPENDENT BANK CORP. INDEPENDENT CAPITAL TRUST III (Exact Name of Co-Registrants as Specified in their Charters) MASSACHUSETTS DELAWARE (State or Other Jurisdiction of Incorporation or (State or Other Jurisdiction of Incorporation or Organization) Organization) 6022 6719 (Primary Standard Industrial Classification Code Number) (Primary Standard Industrial Classification Code Number) 04-2870273 13-7307281 (IRS Employer Identification Number) (IRS Employer Identification Number)
288 UNION STREET C/O THE BANK OF NEW YORK ROCKLAND, MASSACHUSETTS 02370 101 BARCLAY STREET (781) 878-6100 NEW YORK, NEW YORK 10286 (212) 896-7298
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants' Principal Executive Offices) ---------------------------------- EDWARD H. SEKSAY EDWARD H. SEKSAY GENERAL COUNSEL ADMINISTRATIVE TRUSTEE 288 UNION STREET C/O THE BANK OF NEW YORK ROCKLAND, MASSACHUSETTS 02370 101 BARCLAY STREET (781) 878-6100 NEW YORK, NEW YORK 10286 (212) 896-7298
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service for Co-Registrants) ---------------------------------- COPIES TO: NORMAN B. ANTIN, ESQ. RICHARD A. SCHABERG, ESQ. JEFFREY D. HAAS, ESQ. THACHER PROFFITT & WOOD KELLEY DRYE & WARREN LLP 1700 PENNSYLVANIA AVENUE, N.W. 8000 TOWERS CRESCENT DRIVE, SUITE 1200 SUITE 800 VIENNA, VIRGINIA 22182 WASHINGTON, D.C. 20006 (703) 918-2300 (202) 347-8400
---------------------------------- Approximate Date of Commencement of Proposed Sale to the Public: As soon as practicable after this Registration Statement becomes effective. If the only securities being registered on this form are being offered pursuant to dividend interest reinvestment plans, please check the following box. / / If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. / / If this form is filed to register additional securities for an offering pursuant to Rule 462 under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier registration statement for the same offering. / / If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / / CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF TO BE REGISTERED REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE (2) Cumulative Trust Preferred Securities of 1,000,000 $25 $25,000,000 $5,999.08 (1) (3) Independent Capital Trust III........... Junior Subordinated Debentures of $25,000,000 100% $25,000,000 (2) N/A Independent Bank Corp. (2).............. Independent Bank Corp. Guarantee with N/A N/A N/A N/A respect to the Preferred Securities (4)..................................... Total..................................... -- 100% $25,000,000 $5,999.08
(1) Such amount represents the liquidation amount of the Independent Capital Trust III preferred securities and the principal amount of debentures that may be distributed to holders of such preferred securities upon a liquidation of Independent Capital Trust III. (2) No separate consideration will be received for the debentures of Independent Bank Corp. which may be distributed upon a liquidation of Independent Capital Trust III. (3) The total amount of the registration fee is $6,250.00. The Company applied a $250.92 pending balance in its account with the Commission from excess fees previously paid towards this registration fee. (4) No separate consideration will be received for the Independent Bank Corp. guarantee. The guarantee, when taken together with Independent Bank Corp.'s obligations under the trust agreement, the indenture and the debentures, each as described herein, will provide a full and unconditional guarantee, on a subordinated basis, of payment of distributions on the preferred securities. THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. SEC registration fee........................................ 6,000 NASD fee.................................................... Nasdaq fees................................................. 5,000 Legal fees and expenses..................................... 109,000* Trustees' fees and expenses................................. 10,000* Accounting fees and expenses................................ 50,000* Printing expenses........................................... 70,000* Miscellaneous expenses...................................... * -------- Total................................................... $275,000* ========
- ------------------------ * Estimated. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 67 of the Massachusetts Business Corporation Law ("MBCL") sets forth certain circumstances under which directors, officers, employees and agents may be indemnified against liability which they may incur in their capacity as such. Section 67 of the MBCL provides as follows: INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, ETC.--Indemnification of directors, officers, employees and other agents of a corporation and persons who serve at its request as directors, officers, employees or other agents of another organization or who serve at its request in any capacity with respect to any employee benefit plan, may be provided by it to whatever extent shall be specified in or authorized by (i) the articles of organization or (ii) a by-law adopted by the stockholders or (iii) a vote adopted by the holders of a majority of the shares of stock entitled to vote on the election of directors. Except as the articles of organization or by-laws otherwise require, indemnification of any persons referred to in the preceding sentence who are not directors of the corporation may be provided by it to the extent authorized by the directors. Such indemnification may include payment by the corporation of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding, upon receipt of an undertaking by the person indemnified to repay such payment if he shall be adjudicated to be not entitled to indemnification under this section which undertaking may be accepted without reference to the financial ability of such person to make repayment. Any such indemnification may be provided although the person to be indemnified is no longer an officer, director, employee or agent of the corporation or of such other organization or no longer serves with respect to any such employee benefit plan. No indemnification shall be provided for any person with respect to any matter as to which he shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interest of the corporation or to the extent that such matter related to service with respect to an employee benefit plan, in the best interests of the participants or beneficiaries of such employee benefit plan. The absence of any express provision for indemnification shall not limit any right of indemnification existing independently of this section. A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or other agent of the corporation, or is or was serving at the II-1 request of the corporation as a director, officer, employee or other agent of another organization or with respect to any employee benefit plan against any liability incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability. Article Twelve of Independent's By-laws, entitled "Indemnification of Directors, Officers and Others," provides as follows: The corporation shall, to the extent legally permissible, indemnify any person serving on who has served (i) as a Director or officer of the corporation, or (ii) at its request as a Director, trustee, officer, employee or other agent of another organization, or (iii) at its request in any capacity with respect to any employee benefit plan; against all liabilities and expenses including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and counsel fees reasonably incurred by him or her in connection with the defense or disposition of any action, suit or other proceeding, whether civil, criminal or administrative, in which he or she may be involved or with which he or she may be threatened, while serving or thereafter, by reason of his or her being or having been such a Director, officer, trustee, employee or agent, except with respect to any matter as to which he or she shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his or her action was in the best interests of the corporation or to the extent that such matter relates to services with respect to an employee benefit plan, in the best interest of the participants or beneficiaries of such employee benefit plan; provided, however, that as to any matter disposed of by a compromise payment by such Director, officer, trustee, employee or agent, pursuant to a consent decree or otherwise, no indemnification either for said payment or for any other expenses shall be provided unless: (a) such compromise shall be approved as having been in the best interests of the corporation or employee benefit plan participants or beneficiaries, as the case may be, after notice that it involves such indemnification: (i) by a disinterested majority of the Directors then in office; or (ii) by the holders of a majority of the outstanding stock by the time entitled to vote for Directors, voting as a single class, exclusive of any stock owned by any interested Director or officer; or (b) in the absence of action by disinterested Directors or stockholders, there has been obtained at the request of a majority of the Directors then in office an opinion in writing of independent legal counsel to the effect that such Director or officer appears to have acted in good faith in the reasonable belief that his or her action was in the best interests of the corporation or employee benefit plan participants or beneficiaries, as the case may be. Expenses including counsel fees, reasonably incurred by any such Director, officer, trustee, employee or agent in connection with the defense or disposition of any such action, suit or other proceeding may be paid from time to time by the corporation in advance of the final disposition thereof upon receipt of an undertaking by such individual to repay the amounts so paid to the corporation if it is ultimately determined that indemnification for such expenses is not authorized under this section. The right of indemnification hereby provided shall not be exclusive of or affect any other rights to which any such Director, officer, trustee, employee or agent may be entitled. Nothing contained in this Article shall affect any rights to indemnification to which corporate personnel other than such Directors, officers, trustee, employees or agents may be entitled by contract or otherwise under law. As used in this Article the terms "Director," "officer," "trustee," "employee," and "agent" include their respective heirs, executors and administrators, and an "interested" Director, officer, trustee, employee or agent is one against whom in such capacity the proceedings in question or other proceeding on the same or similar grounds is then pending. II-2 ITEM 16. EXHIBITS
EXHIBIT NO. DESCRIPTION - ----------- ----------- 1 Form of Underwriting Agreement* 4.1 Form of Indenture of Registrant relating to the Junior Subordinated Debentures* 4.2 Form of Certificate of Junior Subordinated Debenture (included as Exhibit A to Exhibit 4.1)* 4.3 Certificate of Trust of Independent Capital Trust III* 4.4 Form of Declaration of Trust of Independent Capital Trust III* 4.5 Form of Amended and Restated Declaration of Trust for Independent Capital Trust III* 4.6 Form of Preferred Security Certificate for Independent Capital Trust III (included as Exhibit D to Exhibit 4.5)* 4.7 Form of Preferred Securities Guarantee Agreement of Independent Capital Trust III* 5.1 Opinion of Kelley Drye & Warren LLP as to the legality of the Junior Subordinated Debentures and the Guarantee to be issued by Independent Bank Corp. 5.2 Opinion of Richards, Layton & Finger, P.A. as to the legality of the Preferred Securities to be issued by Independent Capital Trust III* 8.1 Opinion of Kelley Drye & Warren LLP as to certain federal income tax matters 23.1 Consent of Arthur Andersen LLP* 23.2 Consent of Kelley Drye & Warren LLP (included in Exhibits 5.1 and 8) 23.4 Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.2)* 24 Power of Attorney of certain officers, directors and trustees of Independent Bank Corp. and Independent Capital Trust III, respectively (located on the signature pages hereto) 25.1 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under the Indenture* 25.2 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under the Declaration of Trust of Independent Capital Trust III* 25.3 Form T-1 Statement of Eligibility of The Bank of New York under the Guarantee Agreement for the benefit of the holders of the Preferred Securities*
- ------------------------ * Previously filed ITEM 17. UNDERTAKINGS Each of the undersigned Registrants hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of a Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of each undersigned Registrant pursuant to the provisions, or otherwise, each Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by each undersigned Registrant of expenses incurred or paid by a director, officer of controlling person of each Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, each Registrant will, unless in the opinion of its counsel the matter has been settled by the II-3 controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrants pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was declared effective. For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Independent Bank Corp. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Pre-Effective Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Rockland, Massachusetts, on the 5th day of December 2001. INDEPENDENT BANK CORP. By: /s/ DOUGLAS H. PHILIPSEN* ----------------------------------------- Douglas H. Philipsen Chairman of the Board, Chief Executive Officer and President
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ DOUGLAS H. PHILIPSEN* Chairman of the Board, ------------------------------------------- Chief Executive Officer December 5, 2001 Douglas H. Philipsen and President /s/ RICHARD S. ANDERSON* ------------------------------------------- Director December 5, 2001 Richard S. Anderson /s/ W. PAUL CLARK* ------------------------------------------- Director December 5, 2001 W. Paul Clark /s/ ROBERT L. CUSHING* ------------------------------------------- Director December 5, 2001 Robert L. Cushing /s/ ALFRED L. DONOVAN* ------------------------------------------- Director December 5, 2001 Alfred L. Donovan /s/ BENJAMIN A. GILMORE II* ------------------------------------------- Director December 5, 2001 Benjamin A. Gilmore II /s/ E. WINTHROP HALL* ------------------------------------------- Director December 5, 2001 E. Winthrop Hall
II-5
SIGNATURE TITLE DATE --------- ----- ---- /s/ KEVIN J. JONES* ------------------------------------------- Director December 5, 2001 Kevin J. Jones /s/ LAWRENCE M. LEVINSON* ------------------------------------------- Director December 5, 2001 Lawrence M. Levinson /s/ RICHARD H. SGARZI* ------------------------------------------- Director December 5, 2001 Richard H. Sgarzi /s/ WILLIAM J. SPENCE* ------------------------------------------- Director December 5, 2001 William J. Spence /s/ JOHN H. SPURR JR.* ------------------------------------------- Director December 5, 2001 John H. Spurr Jr. /s/ ROBERT D. SULLIVAN* ------------------------------------------- Director December 5, 2001 Robert D. Sullivan /s/ BRIAN S. TEDESCHI* ------------------------------------------- Director December 5, 2001 Brian S. Tedeschi /s/ THOMAS J. TEUTEN* ------------------------------------------- Director December 5, 2001 Thomas J. Teuten /s/ DENIS K. SHEAHAN ------------------------------------------- Chief Financial Officer and December 5, 2001 Denis K. Sheahan Treasurer
*By: /s/ DENIS K. SHEAHAN -------------------------------------- Denis K. Sheahan PURSUANT TO POWER OF ATTORNEY DATED NOVEMBER 1, 2001
II-6 Pursuant to the requirements of the Securities Act of 1933, Independent Capital Trust III certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Rockland, Massachusetts, on the 5th day of December 2001. INDEPENDENT CAPITAL TRUST III By: /s/ EDWARD H. SEKSAY ----------------------------------------- Edward H. Seksay Administrative Trustee By: /s/ ANTHONY W. DIROBBIO ----------------------------------------- Anthony W. DiRobbio Administrative Trustee By: /s/ DENIS K. SHEAHAN ----------------------------------------- Denis K. Sheahan Administrative Trustee
II-7 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION - ----------- ----------- 1 Form of Underwriting Agreement* 4.1 Form of Indenture of Registrant relating to the Junior Subordinated Debentures* 4.2 Form of Certificate of Junior Subordinated Debenture (included as Exhibit A to Exhibit 4.1)* 4.3 Certificate of Trust of Independent Capital Trust III* 4.4 Form of Declaration of Trust of Independent Capital Trust III* 4.5 Form of Amended and Restated Declaration of Trust of Independent Capital Trust III* 4.6 Form of Preferred Security Certificate for Independent Capital Trust III (included as Exhibit D to Exhibit 4.5)* 4.7 Form of Preferred Securities Guarantee Agreement of Independent Capital Trust III* 5.1 Opinion of Kelley Drye & Warren LLP as to the legality of the Junior Subordinated Debentures and the Guarantee to be issued by Independent Bank Corp. 5.2 Opinion of Richards, Layton & Finger, P.A. as to the legality of the Preferred Securities to be issued by Independent Capital Trust III* 8.1 Opinion of Kelley Drye & Warren LLP as to certain federal income tax matters 23.1 Consent of Arthur Andersen LLP* 23.2 Consent of Kelley Drye & Warren LLP (included in Exhibits 5.1 and 8) 23.4 Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.2)* 24 Power of Attorney of certain officers, directors and trustees of Independent Bank Corp. and Independent Capital Trust III, respectively (located on the signature pages hereto) 25.1 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under the Indenture* 25.2 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under the Declaration of Trust of Independent Capital Trust III* 25.3 Form T-1 Statement of Eligibility of The Bank of New York under the Guarantee Agreement for the benefit of the holders of the Preferred Securities*
- ------------------------ * Previously filed EX-5.1 3 a2064604zex-5_1.txt EXHIBIT 5.1 EXHIBIT 5.1 Law Offices KELLEY DRYE & WARREN LLP 8000 Towers Crescent Drive Suite 1200 Vienna, Virginia 22182 Telephone (703) 918-2300 December 5, 2001 Board of Directors Independent Bank Corp. 288 Union Street Rockland, Massachusetts 02370 Re: REGISTRATION STATEMENT ON FORM S-3 Ladies and Gentlemen: In connection with the registration under the Securities Act of 1933, as amended (the "Act"), of up to an aggregate principal amount of $25,773,200 Junior Subordinated Debentures (the "Junior Subordinated Debentures") of Independent Bank Corp., a Massachusetts corporation (the "Corporation"), up to an aggregate liquidation amount of $25,000,000 of Cumulative Trust Preferred Securities (the "Trust Preferred Securities") of Independent Capital Trust III, a business trust created under the laws of the State of Delaware (the "Issuer"), and the Guarantee with respect to the Trust Preferred Securities (the "Guarantee") to be executed and delivered by the Corporation for the benefit of the holders from time to time of the Trust Preferred Securities, we, as your counsel, have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purpose of this opinion. Upon the basis of such examination, we are of the opinion that, when: (i) the Registration Statement relating to the Junior Subordinated Debentures, the Trust Preferred Securities and the Guarantee has become effective under the Act; (ii) the Guarantee Agreement relating to the Guarantee with respect to the Trust Preferred Securities of the Issuer (which is governed by the law of the State of New York) has been duly executed and delivered; (iii) the Junior Subordinated Debentures have been duly executed and authenticated in accordance with the Indenture (which is governed by the law of the State of New York) and issued and delivered as contemplated in the Registration Statement; and (iv) the Trust Preferred Securities have been duly executed in accordance with the Amended and Restated Declaration of Trust of the Issuer (which is governed by the law of the State of Delaware) and issued and delivered as contemplated in the Registration Statement, the Junior Subordinated Debentures and the Guarantee relating to the Trust Preferred Securities of the Issuer will constitute valid and legally binding obligations of the Corporation, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. We understand that you have received an opinion regarding the Trust Preferred Securities from Richards, Layton & Finger, P.A., special Delaware counsel for the Corporation and the Issuer. We are expressing no opinion with respect to the matters contained in such opinion. Also, we have relied as to certain factual matters on information obtained from public officials, officers of the Corporation and other sources believed by us to be responsible. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to us under the heading "Legal Matters" in the Prospectus. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act. Very truly yours, /s/ Kelley Drye & Warren LLP KELLEY DRYE & WARREN LLP EX-8.1 4 a2064604zex-8_1.txt EXHIBIT 8.1 Exhibit 8.1 Law Offices KELLEY DRYE & WARREN LLP 8000 Towers Crescent Drive Suite 1200 Vienna, Virginia 22182 Telephone (703) 918-2371 December 5, 2001 Board of Diretors Independent Bank Corp. 288 Union Street Rockland, Massachusetts 02370 Ladies and Gentlemen: We have acted as tax counsel for Independent Bank Corp., a Massachusetts corporation (the "Company"), and Independent Capital Trust III, a Delaware business trust (the "Trust"), in connection with a proposed Underwriting Agreement (the "Underwriting Agreement") between Legg Mason Wood Walker Incorporated (the "Underwriter"), the Company and the Trust, relating to the sale by the Trust to underwriters of 1,000,000 of its _% Cumulative Trust Preferred Securities (the "Preferred Securities"), or such additional Preferred Securities pursuant to the terms of the Underwriting Agreement, representing undivided beneficial interests in the assets of the Trust. The Preferred Securities are guaranteed (the "Preferred Securities Guarantee") by the Company with respect to the payment of distributions and payments upon liquidation, redemption and otherwise pursuant to, and to the extent set forth in, a Preferred Securities Guarantee Agreement to be entered into by the Company and The Bank of New York, as preferred guarantee trustee, for the benefit of the holders of the Preferred Securities, the form of which is attached as an exhibit to the Registration Statement, defined below (the "Preferred Securities Guarantee Agreement"). In connection with the issuance of the Preferred Securities, the Trust is also issuing 100% of its common securities representing undivided beneficial interests in the assets of the Trust (the "Common Securities"), which the Company will purchase from the Trust. The Preferred Securities and the Common Securities are being issued pursuant to an Amended and Restated Declaration of Trust to be entered into among the Company, as sponsor, and the trustees of the Trust, the form of which is attached as an exhibit to the Registration Statement (the "Declaration"). The entire proceeds from the sale of the Preferred Securities and the Common Securities are to be used by the Trust to purchase up to $25,773,200 aggregate principal of __% Junior Subordinated Debentures due 2031 (the "Debentures") to be issued by the Company pursuant to an Indenture to be entered into between the Company and The Bank of New York, as trustee, the form of which is attached as an exhibit to the Registration Statement (the "Indenture"). The opinions expressed herein are being furnished pursuant to the Registration Statement on Form S-3 dated the date hereof (the "Registration Statement") relating to the issuance of the Preferred Securities, the Preferred Securities Guarantee and the Debentures. In connection with the opinions expressed herein, we have examined and relied upon originals or copies of: (1) the Registration Statement; (2) the Certificate of Trust filed with the State of Delaware on October 30; 2001; (3) the Declaration; (4) the Preferred Securities Guarantee Agreement; (5) the Indenture; (6) the form of the Debentures and a specimen certificate thereof; (7) the Underwriting Agreement; and (8) the form of the Preferred Securities. We have also relied upon certain statements and representations made by officers of the Company and the Trust. In addition, we have examined originals and copies of such records of the Company and the Trust and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions expressed herein. In such examination we have assumed the genuineness of all signatures, the authority of each signatory, the due authorization, execution and delivery of all documents by all parties, the authenticity of all documents submitted to us as originals, and the conformity with originals of all documents submitted to us as copies. The opinions expressed herein are conditioned on, among other things, the initial and continuing accuracy of the facts, information, covenants and representations set forth in the documents referred to above and the statements and factual representations made by officers of the Company and the Trust. We have assumed that the transactions related to the issuance of the Preferred Securities, the Common Securities and the Debentures will be consummated in the manner contemplated in the Registration Statement. We have further assumed, with your consent, that (i) the Trust is a validly formed trust under the Delaware Business Trust Act, and (ii) the issuance of the Preferred Securities, the Common Securities and the Debentures complies with any and all applicable securities laws. The opinions expressed herein are based upon the Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations promulgated thereunder, and administrative and judicial interpretations thereof, all as in effect as of the date of this letter, and all of which are subject to change, which changes may be retroactively applied. A change in the authorities upon which our opinions are based could affect our conclusions. Further, we note that there is no authority directly on point dealing with securities such as the Debentures and the Preferred Securities or transactions of the type described herein, and there can be no assurances that any of the opinions expressed herein would be accepted by the Internal Revenue Service or, if challenged, by a court. Based solely on the foregoing, it is our opinion that under current United States federal income tax law: (1) The Trust will be classified as a grantor trust and not as an association taxable as a corporation. (2) The Debentures will be treated as indebtedness for United States federal income tax purposes. We consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement. Except as set forth above, we express no opinion to any party as to the tax consequences, whether federal, state, local or foreign, of the issuance of the Debentures, the Preferred Securities, the Common Securities or of any transactions related to or contemplated by such issuance. This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes to the facts stated or assumed herein or any subsequent changes in applicable law. Very truly yours, /S/ KELLEY DRYE & WARREN LLP Kelley Drye & Warren LLP -----END PRIVACY-ENHANCED MESSAGE-----