Attached files
file | filename |
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8-K - FORM 8-K - WINTRUST FINANCIAL CORP | c61732e8vk.htm |
EX-1.2 - EX-1.2 - WINTRUST FINANCIAL CORP | c61732exv1w2.htm |
EX-1.1 - EX-1.1 - WINTRUST FINANCIAL CORP | c61732exv1w1.htm |
EX-4.1 - EX-4.1 - WINTRUST FINANCIAL CORP | c61732exv4w1.htm |
EX-4.2 - EX-4.2 - WINTRUST FINANCIAL CORP | c61732exv4w2.htm |
EX-4.3 - EX-4.3 - WINTRUST FINANCIAL CORP | c61732exv4w3.htm |
EX-5.1 - EX-5.1 - WINTRUST FINANCIAL CORP | c61732exv5w1.htm |
EX-99.2 - EX-99.2 - WINTRUST FINANCIAL CORP | c61732exv99w2.htm |
EX-99.1 - EX-99.1 - WINTRUST FINANCIAL CORP | c61732exv99w1.htm |
Exhibit 5.2
SIDLEY AUSTIN llp | BEIJING | NEW YORK | ||||
ONE SOUTH DEARBORN STREET | BRUSSELS | PALO ALTO | ||||
CHICAGO, IL 60603 | CHICAGO | SAN FRANCISCO | ||||
(312) 853 7000 | DALLAS | SHANGHAI | ||||
(312) 853 7036 FAX | FRANKFURT | SINGAPORE | ||||
GENEVA | SYDNEY | |||||
HONG KONG | TOKYO | |||||
LONDON | WASHINGTON, D.C. | |||||
LOS ANGELES | ||||||
FOUNDED 1866 |
December 10, 2010
Wintrust Financial Corporation
727 North Bank Lane
Lake Forest, Illinois 60045
727 North Bank Lane
Lake Forest, Illinois 60045
Re: Issuance of Tangible Equity Units
Ladies and Gentlemen:
We refer to (i) the Registration Statement on Form S-3 (File No. 333-165166) (the
Original Registration Statement) filed by Wintrust Financial Corporation, an Illinois
corporation (the Company), and Wintrust Capital Trust VI, a Delaware statutory trust, on
March 3, 2010 with the Securities and Exchange Commission (the SEC) under the Securities
Act of 1933, as amended (the Securities Act), and (ii) Post-Effective Amendment No. 1 to
the Original Registration Statement (the Post-Effective Amendment) filed by the Company
on December 6, 2010 with the SEC. Pursuant to the Registration Statement, the Company is issuing
4,000,000 7.50% tangible equity units of the Company, stated amount $50 per unit (the
Units).
This letter is being delivered in accordance with the requirements of Item 601(b)(5) of
Regulation S-K under the Securities Act.
Each Unit consists of (1) a pre-paid stock purchase contract (each, a Purchase
Contract) issued pursuant to the Purchase Contract Agreement (as defined below) under which
the holder has purchased and the Company will agree to automatically deliver on December 15, 2013,
subject to early settlement of such Purchase Contract pursuant to the provisions thereof and of the
Purchase Contract Agreement, a number of shares of common stock, no par value per
share, of the Company (Common Stock) determined pursuant to the terms of the
Purchase Contract and the Purchase Contract Agreement, and (2) a 9.50% Junior Subordinated
Amortizing Note due December 15, 2013, each of which will have an initial principal amount of
$9.728182 (each, an Amortizing Note) issued pursuant to the Indenture (as defined below).
The maximum number of shares of Common Stock deliverable pursuant to each Purchase Contract is
1.6666, subject to adjustment, so the maximum number of shares of Common Stock deliverable pursuant
to the Purchase Contracts included in the Units (the Maximum Issuable Shares) is
6,666,400, subject to adjustment, and the aggregate principal amount of the Amortizing Notes
included in the Units (the Notes) is $38,912,728.
In rendering the opinions expressed below, we have examined (i) the Original Registration
Statement, as amended by the Post-Effective Amendment (collectively, the
Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships
Wintrust Financial Corporation
December 10, 2010
Page 2
December 10, 2010
Page 2
Registration Statement) and the exhibits filed therewith, (ii) the Companys
prospectus dated March 3, 2010 included in the Registration Statement (the Base
Prospectus), (iii) the Companys prospectus supplement dated December 7, 2010 supplementing
the Base Prospectus and relating to the Units (the Prospectus Supplement), (iv) a free
writing prospectus dated December 7, 2010, (v) the Purchase Agreement, dated December 7, 2010 (the
Purchase Agreement), between the Company and Merrill Lynch, Pierce, Fenner & Smith
Incorporated as representatives of the underwriters named in Schedule A thereto, (vi) certain
resolutions of the Board of Directors (the Board) of the Company adopted on October 28,
2010 and certain resolutions and a written consent of the Finance Committee of the Board adopted on
December 6 and 7, 2010, respectively, each as certified by the Secretary of the
Company on the date hereof as being true, complete and correct and in full force and effect,
relating to, among other things, the issuance and sale of Units, (vii) the Junior Subordinated
Indenture, dated as of December 10, 2010 (the Base Indenture), between the Company and
U.S. Bank National Association, a national banking association, as trustee (the Trustee),
as supplemented by the First Supplemental Indenture, dated as of December 10, 2010 (the
Supplemental Indenture; the Base Indenture as supplemented by the Supplemental Indenture
is hereinafter called the Indenture), between the Company and the Trustee, (viii) the
Purchase Contract Agreement, dated as of December 10, 2010 (the Purchase Contract
Agreement), among the Company, U.S. Bank National Association, a national banking association,
as purchase contract agent and attorney-in-fact for the holders of Purchase Contracts (the
Purchase Contract Agent), and the Trustee, and (ix) the amended and restated articles of
incorporation of the Company and the amended and
restated by-laws of the Company, in each case, as certified by the Secretary of the Company on
the date hereof as being true, complete and correct and in full force and effect on the date
hereof. We have also examined originals, or copies of originals certified to our satisfaction, of
such agreements, documents, certificates and statements of government officials and other
instruments, and have examined such questions of law and have satisfied ourselves to such matters
of fact, as we have considered relevant and necessary as a basis for this letter. We have assumed
the authenticity of all documents submitted to us as originals, the genuineness of all signatures,
the legal capacity of all persons and the conformity with the original documents of any copies
thereof submitted to us for examination.
Based on the foregoing, and subject to the qualifications and limitations set forth herein, we
are of the opinion that:
1. When the Units and the Purchase Contracts shall have been duly executed and
delivered by the Company, and authenticated by the Purchase Contract Agent and the Trustee, all in
accordance with the provisions of the Purchase Contract Agreement, and duly delivered to the
purchasers thereof against payment of the agreed consideration therefor as contemplated by the
Purchase Agreement, the Units and Purchase Contracts will constitute valid and legally binding
obligations of the Company, subject to bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, fraudulent transfer and other laws of general
Wintrust Financial Corporation
December 10, 2010
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December 10, 2010
Page 3
applicability relating to or affecting creditors rights generally, including, to the extent applicable, the rights
of creditors of financial companies (as defined in Section 201 of the Dodd-Frank Wall Street
Reform and Consumer Protection Act) or their affiliates, and to general principles of equity,
regardless of whether considered in a proceeding in equity or at law (collectively, the
Enforceability Exceptions).
2. When the Notes shall have been duly executed by the Company and authenticated by the
Trustee, all as provided in the Indenture, and duly delivered to the purchasers thereof against
payment of the agreed consideration therefor as contemplated by the
Purchase Agreement, the Notes will constitute valid and legally binding obligations of the
Company, subject to the Enforceability Exceptions.
3. Each share of Common Stock will be legally issued, fully paid and non-assessable when
issued upon settlement of the Purchase Contracts in accordance with the terms of the Purchase
Contract Agreement.
For the purposes of this letter, we have assumed that the shares of Common Stock issuable upon
settlement of the Purchase Contracts will not exceed the Maximum Issuable Shares and that at the
time of the issuance and delivery of such shares: (i) the authorization thereof by the Company will
not have been modified or rescinded, and there will not have occurred any change in law affecting
the validity thereof; and (ii) the amended and restated articles of incorporation of the Company
and the amended and restated by-laws of the Company, as currently in effect, will not have been
modified or amended and will be in full force and effect.
This letter is limited to the laws of the State of Illinois and the State of New York and the
federal laws of the United States of America.
We do not find it necessary for the purposes of this letter to cover, and accordingly we
express no opinion as to, the application of the securities or blue sky laws of the various states
or the District of Columbia to the issuance and sale of the Units, the Purchase Contracts, the
Notes or the shares of Common Stock.
We hereby consent to the filing of this letter as an exhibit to the Companys Current Report
on Form 8-K being filed by the Company on December 10, 2010 with the SEC and to all references to
our firm in the Prospectus Supplement. 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 Securities Act or the
rules or regulations promulgated thereunder.
Very truly yours,
/s/ Sidley Austin LLP