EXHIBIT 8.1
, 2004
Falmouth Bancorp, Inc.
20 Davis Straits
Falmouth, MA 02540
Ladies and Gentlemen:
This opinion is being delivered to you in connection with the filing of
a registration statement (the "Registration Statement") on Form S-4, which
includes the Joint Proxy Statement and Prospectus dated May 7, 2004, relating
to the Amended and Restated Agreement and Plan of Merger dated April 26, 2004
(the "Merger Agreement"), pursuant to which (i) INDB Sub, Inc., ("Sub"), a
Massachusetts corporation and a wholly-owned subsidiary of Independent Bank
Corp., Inc. ("INDB"), a Massachusetts corporation, will be merged with and into
Falmouth Bancorp, Inc. ("Falmouth"), a Delaware corporation, with Falmouth
surviving the merger, and (ii) immediately thereafter, Falmouth will be merged
with and into INDB. The two mergers referred to in this paragraph will be
referred to collectively herein as the "Parent Level Mergers."
The opinions set forth below are based upon the Code, judicial
decisions, and administrative regulations and published rulings and other
pronouncements, all as in effect and existing on the date hereof. The law
expressed in the Code and in such decisions, regulations, and rulings is subject
to change at any time (and any such change could have retroactive effect), and
future legislative, judicial, or administrative actions could affect the
opinions expressed herein. We assume no obligation to inform you of such
changes.
The opinions set forth below are not binding on the Internal Revenue
Service or the courts and there can be no assurance that the Internal Revenue
Service or courts would agree with our conclusions. No ruling has been or will
be requested from the Internal Revenue Service concerning the federal income tax
consequences of the Merger. Our opinion is based on the facts and assumptions
stated herein. Any variation or differences in the facts recited herein for any
reason might affect the conclusions stated herein in an adverse manner or make
them inapplicable.
We have formed our opinions after review of, and in reliance upon, the
Merger
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April , 2004
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Agreement, including all exhibits and attachments thereto, the certificates of
INDB and Falmouth given to us in connection with our rendering this opinion, and
the Registration Statement. We have assumed that all documents presented to us
as originals are authentic, that all signatures are genuine, and that all copies
of documents fully conform to authentic original documents. We have further
assumed that all facts, representations, and warranties set forth in the Merger
Agreement (including exhibits thereto), the certificates of the parties, and in
the Registration Statement are true and accurate and will continue to be true
and accurate at the Effective Time, that all conditions and covenants to closing
set forth in the Merger Agreement and pertinent to these opinions will be
satisfied and will not be waived, and that all other documents provided for in
the Merger Agreement will be properly executed and delivered prior to the
Effective Time. We have assumed that any representation or statement made "to
the best of knowledge" or similarly qualified is correct without such
qualification. We have also assumed that all representations provided to us by
INDB and Falmouth in the attached certificates are true and accurate and will
continue to be true and accurate at the Effective Time.
Our opinions are limited to the specific federal income tax matters
described below. We express no other opinions, and none should be inferred. In
particular, these opinions do not address any issues relating to any state,
local, or foreign taxes. Except as specifically stated below, these opinions
also do not address the tax consequences of the Parent Level Mergers for any
taxpayer other than Falmouth and its shareholders, including INDB and its
shareholders.
Any capitalized terms used herein and not otherwise defined shall have
the meanings given to them in the Merger Agreement. All section references
herein are to the Internal Revenue Code of 1986, as amended (the "Code").
Based on and subject to the foregoing, we are of the opinion that as of
the Effective Time for federal income tax purposes:
1. The Parent Level Mergers will together be treated as a reorganization
described in Section 368(a) of the Code;
2. No gain or loss will be recognized by INDB. INDB Sub, Inc. or Falmouth by
reason of the Parent Level Mergers;
3. The exchange of Falmouth Common Stock solely for INDB Common Stock by
Falmouth shareholders pursuant to the Parent Level Mergers will not give
rise to the recognition of gain or loss;
4. The basis of the INDB Common Stock (including any fractional shares
thereof
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April , 2004
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deemed for tax purposes to be issued and then redeemed by INDB) received
by a shareholder of Falmouth pursuant to the Parent Level Mergers will be
the same as the basis of the Falmouth Common Stock surrendered in exchange
therefor, increased by any gain recognized by such shareholder (including
any portion of the gain treated as a dividend) and decreased by the amount
of cash received by such shareholder;
5. Provided that the Falmouth Common Stock surrendered in the Parent Level
Mergers is held as a capital asset at the Effective Time, the holding
period of the INDB Common Stock received by a Falmouth shareholder in
exchange for such Falmouth Common Stock pursuant to the Parent Level
Mergers will include the period during which such shareholder held such
Falmouth Common Stock.
These opinions are intended solely for the benefit of Falmouth and its
stockholders and not for the benefit of any other person or entity, and may not
be made available to or relied upon by any other person or entity without our
prior written consent. We hereby consent to the inclusion of a copy of this
opinion letter as an Exhibit to the Registration Statement and to all references
to us and to this opinion letter in the Registration Statement.
Very truly yours,
CHOATE, HALL & STEWART