Attached files
file | filename |
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8-K - FORM 8-K - WINTRUST FINANCIAL CORP | c61808e8vk.htm |
EX-5.1 - EX-5.1 - WINTRUST FINANCIAL CORP | c61808exv5w1.htm |
EX-99.1 - EX-99.1 - WINTRUST FINANCIAL CORP | c61808exv99w1.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 15, 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 and the exercise of the
option pursuant to the Purchase Agreement (as defined below) to purchase additional 7.50% tangible
equity units of the Company, stated amount $50 per unit (the Units) to cover
overallotments, the Company is issuing 600,000 Units (the Option 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 Option Unit consists of (1) a pre-paid stock purchase contract (each, an Option
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 Option 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 (Option Common Stock) determined pursuant to the terms of the
Option 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 Option Amortizing Note) issued pursuant to the Indenture (as defined
below). The maximum number of shares of Option Common Stock deliverable pursuant to each Option
Purchase Contract is 1.6666, subject to adjustment, so the maximum number of shares of Option
Common Stock deliverable pursuant to the Option Purchase Contracts included in the Option Units
(the Maximum Issuable Option Shares) is 999,960, subject to adjustment, and the aggregate
principal amount of the Option Amortizing Notes included in the Option Units (the Option
Notes) is $5,836,909.20.
Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships
Wintrust Financial Corporation
December 15, 2010
Page 2
In rendering the opinions expressed below, we have examined (i) the Original Registration
Statement, as amended by the Post-Effective Amendment (collectively, the 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 Option Units and the Option 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 Option Units and Option Purchase Contracts will
Wintrust Financial Corporation
December 15, 2010
Page 3
constitute valid and legally binding obligations of the Company, subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other laws
of general 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 Option 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
Option Notes will constitute valid and legally binding obligations of the Company, subject to the
Enforceability Exceptions.
3. Each share of Option Common Stock will be legally issued, fully paid and non-assessable
when issued upon settlement of the Option 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 Option Common Stock
issuable upon settlement of the Option Purchase Contracts will not exceed the Maximum Issuable
Option 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 Option Units, the Option Purchase
Contracts, the Option Notes or the shares of Option 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 15, 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.
Wintrust Financial Corporation
December 15, 2010
Page 4
Very truly yours, |
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/s/ Sidley Austin LLP | ||||