Exhibit 8.1
[Letterhead of Barack Ferrazzano]
August 20, 2003
Advantage National Bancorp, Inc.
75 East Turner Avenue
Elk Grove Village, Illinois 60007
Re: Opinion Regarding Material Federal Income Tax Consequences
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Ladies and Gentlemen:
We have acted as special counsel to Advantage National Bancorp, Inc.,
an Illinois corporation ("Company"), in connection with the negotiation and
execution of an Agreement and Plan of Merger, dated as of July 2, 2003 (the
"Agreement"), by and among Wintrust Financial Corporation, an Illinois
corporation ("Acquiror"), Wintrust Merger Co., an Illinois corporation and
wholly-owned subsidiary of Acquiror ("Sub"), and Company, whereby Sub will merge
with and into Company with Company surviving (the "Merger"), as more fully
described in the Registration Statement on Form S-4, filed by Acquiror with the
Securities and Exchange Commission (the "Commission") on August __, 2003 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"). This opinion is being delivered to you pursuant to Section 8.7(b) of the
Agreement.
In connection with this opinion, we have reviewed the Agreement,
including all exhibits thereto, and such other documents and records as we
deemed necessary or appropriate (collectively, the "Documents"). In our
examination of the Documents, we have assumed their completeness and
authenticity, and we have further assumed that each of the Documents has been or
will be duly authorized and executed in the form as examined by us and will be
binding upon all parties thereto. We are expressly relying for purposes of this
opinion on the facts, information, representations, warranties and covenants
contained in the Documents. In addition, we are expressly relying upon
additional representations of fact made by Company in a letter dated of even
date hereof and by Acquiror and Sub in a letter dated of even date hereof,
delivered to us in connection with this opinion, as well as facts learned in
discussions with certain officers of Company and certain other assumptions
stated herein. We are relying upon the accuracy of any representations or
statements made that are qualified by the maker's knowledge or belief as if such
representations or statements were made without such qualification. We have also
assumed that as to all matters for which a person or entity has represented that
such person or entity is not a party to, does not have, or is not aware of, any
plan, intention, understanding, or agreement, there is no such plan, intention,
understanding, or agreement. We have not been asked to and have not attempted to
verify any facts, information, warranties or representations (collectively
Advantage National Bancorp, Inc.
August 20, 2003
Page 2
"statements") through independent investigation and are assuming that each is
true, correct and complete as of the date hereof and that no actions
inconsistent with such statements have occurred or will occur.
In connection with this opinion, we have assumed that the Merger will
qualify as a merger under all applicable state business corporation statutes,
and that the Merger will be effected and consummated in accordance with the
terms and conditions of the Agreement, including satisfaction of all material
covenants and conditions to the obligations of the parties without amendment or
waiver thereof. We have also assumed that none of the parties will take any
action after the Merger that would cause the Merger not to qualify as a
reorganization within the meaning of Section 368(a) of the Internal Revenue Code
of 1986, as amended (the "Code").
Based on and subject to the foregoing, including, without limitation,
the qualifications, exceptions and assumptions set forth above and the
exceptions, qualifications and limitations set forth below, it is our opinion
that (i) the Merger will constitute a reorganization within the meaning of
Section 368(a) of the Code, (ii) each of Company and Acquiror will be a "party
to a reorganization" within the meaning of Section 368(b) of the Code, and (iii)
the discussion contained in the proxy statement/prospectus included as part of
the Registration Statement under the heading "DESCRIPTION OF THE MERGER - Tax
consequences of the merger" constitutes, in all material respects, a fair and
accurate summary of the United States federal income tax consequences of the
Merger to the parties described therein.
We express no opinion as to the tax treatment of the Merger under the
provisions of any other sections of the Code or under any state, local or
foreign tax laws which also may be applicable thereto or as to any other party
in the Merger, nor do we express any opinion as to non-tax issues such as
corporate law or securities law matters. In addition, we express no opinion as
to the tax treatment of any conditions existing at the time of, or effects
resulting from, transactions which are not specifically addressed herein. We
express no opinion as to whether the above discussion addresses all of the
United States federal or state income tax consequences of the Merger that may be
applicable to Acquiror, Sub, Company, or the Company stockholders.
The opinions stated herein represent our legal judgment as to the
described federal income tax consequences of the Merger. Our opinion is based
upon the existing Code, Income Tax Regulations promulgated thereunder, and
administrative and judicial determinations, all of which are subject to change
either prospectively or retroactively, and our knowledge of the facts as of the
date hereof. If either (i) the relevant facts at the time of closing differ from
those represented or stated to us or reflected by the Documents, (ii) the Merger
is completed under terms not contained in the Agreement, (iii) our assumptions
prove to be untrue, or (iv) the existing authorities are modified by
legislative, administrative or judicial action, our conclusions may differ and
this opinion may not be relied upon. In such event, we do not assume any
responsibility to provide a revised opinion or other advice, and we assume no
duty to communicate with you with respect to any matter that comes to our
attention hereafter.
Advantage National Bancorp, Inc.
August 20, 2003
Page 3
You should be aware that no ruling has been sought or obtained from the
Internal Revenue Service (the "Service") as to the federal income tax
consequences of any aspect of the Merger and that our opinion is not binding on
the Service. You should also be aware that there can be no assurance, and none
is hereby given, that the Service will not take a position contrary to the
position reflected in the foregoing opinion, or that our opinion will be upheld
by the courts if challenged by the Service.
We hereby consent to the use of this opinion in connection with the
Registration Statement. In giving such consent, however, we do not hereby
concede that we are within the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission
promulgated thereunder.
We are furnishing this opinion to you solely for your benefit in
connection with the transactions contemplated by the Agreement. This opinion may
not be relied upon by any other party without our prior written consent, nor may
it be used, circulated, quoted or otherwise referred to for any other purpose
without our prior written consent.
Very truly yours,
/s/ BARACK FERRAZZANO KIRSCHBAUM
PERLMAN & NAGELBERG LLC