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EXHIBIT 5.1
[Letterhead of Vorys, Sater, Seymour and Pease LLP]
September 4, 2001
Second Bancorp Incorporated
108 Main Avenue, S.W.
Warren, OH 44481
and
Second Bancorp Capital Trust I
108 Main Avenue, S.W.
Warren, OH 44481
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel for Second Bancorp Incorporated, an Ohio
corporation (the "Company"), and Second Bancorp Capital Trust I, a statutory
business trust created under the laws of the State of Delaware (the "Trust"), in
connection with the preparation and filing of a Registration Statement on Form
S-3 (the "Registration Statement"), filed with the Securities and Exchange
Commission (the "Commission") on September 4, 2001, under the Securities Act of
1933, as amended (the "Act"), for the purpose of registering (i) 2,990,000
Cumulative Trust Preferred Securities to be issued by the Trust representing
preferred undivided beneficial interests in the Trust (the "Preferred
Securities"), (ii) $29,900,000 aggregate principal amount of the Company's
Subordinated Debentures due 2031 (the "Subordinated Debentures") to be issued by
the Company to the Trust pursuant to an Indenture to be entered into by the
Company and Wilmington Trust Company, as Indenture Trustee (the "Indenture"),
and (iii) the Company's guarantee, which guarantees the payment of distributions
and payments on liquidation or redemption of the Preferred Securities, to be
issued by the Company, pursuant to a Preferred Securities Guarantee Agreement to
be entered into by the Company and Wilmington Trust Company, as Guarantee
Trustee (the "Guarantee"), for the benefit of the
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Second Bancorp Incorporated
and
Second Bancorp Capital Trust I
September 4, 2001
Page 2
holders of the Preferred Securities in consideration of their purchase of the
Preferred Securities.
In rendering this opinion, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of:
(a) the Certificate of Trust of the Trust, as filed with the Office of
the Secretary of State of the State of Delaware on August 29, 2001;
(b) the Trust Agreement of the Trust, dated as of August 29, 2001, among
the Company and the trustees named therein;
(c) the form of Amended and Restated Trust Agreement of the Trust to be
entered into among the Company, Wilmington Trust Company, as
Property Trustee and Delaware Trustee, the Administrative Trustees
of the Trust named therein and the holders, from time to time, of
the Preferred Securities, attached as an exhibit to the Registration
Statement (the "Amended and Restated Trust Agreement");
(d) the form of Preferred Securities Certificate of the Trust (the
"Preferred Securities Certificate"), included as an exhibit to the
Amended and Restated Trust Agreement and attached as an exhibit to
the Registration Statement;
(e) the form of Guarantee, attached as an exhibit to the Registration
Statement;
(f) the form of Indenture, attached as an exhibit to the Registration
Statement; and
(g) the form of Subordinated Debentures, included as an exhibit to the
Indenture and attached as an exhibit to the Registration Statement.
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Second Bancorp Incorporated
and
Second Bancorp Capital Trust I
September 4, 2001
Page 3
We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records, certificates and
other documents, and such questions of law, as we have deemed necessary or
appropriate for purposes of rendering the opinions set forth below.
In our examinations and in rendering the opinions set forth below, we have
assumed, without independent investigation or examination, (1) the legal
capacity of all natural persons, (2) the genuiness of all signatures, (3) the
authenticity and completeness of all documents submitted to us as originals, (4)
the conformity to original documents of all documents submitted to us as
certified or photostatic copies and the authenticity of the originals of such
latter documents, and (5) the accuracy and completeness of all corporate records
and documents and of all certificates and statements of fact, in each case given
or made available to us by the Company. In making our examination of documents
executed by parties other than the Company or the Trust, we have assumed that
such parties had the power, corporate or otherwise, to enter into and perform
all obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or otherwise, and due execution and delivery by such
parties of such documents and that such documents are valid and binding
agreements of such parties. In addition, we have assumed that the Amended and
Restated Trust Agreement, the Preferred Securities Certificate, the Guarantee,
the Indenture and the Subordinated Debentures will be executed and
authenticated, as appropriate, in substantially the form reviewed by us. As to
the facts material to our opinions expressed herein which were not independently
established or verified, we have relied upon oral or written statements and
representations of officers, trustees and other representatives of the Company
and the Trust.
Based upon and subject to the foregoing and to the other qualifications
and limitations set forth herein, as of the date hereof, we are of the opinion
that:
1. The Subordinated Debentures have been duly authorized by all requisite
corporate action of the Company for issuance by the Company. After the
Registration Statement, as
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Second Bancorp Incorporated
and
Second Bancorp Capital Trust I
September 4, 2001
Page 4
the same may be amended, has become effective under the Act and the Indenture
has been duly executed and delivered, the Subordinated Debentures, when duly
executed, authenticated and delivered in the manner provided for in the
Indenture and paid for as contemplated by the Indenture and described in the
Registration Statement, will constitute valid and binding obligations of the
Company, entitled to the benefits of the Indenture and will be enforceable
against the Company in accordance with their terms, subject to the limitations,
if any, of Title 11 U.S.C., as amended, and of applicable insolvency,
reorganization, moratorium or other laws affecting the enforcement of creditors'
rights generally and by principles of equity and public policy.
2. The Guarantee has been duly authorized by all requisite corporate
action of the Company for issuance by the Company. After the Registration
Statement, as the same may be amended, has become effective under the Act and
upon the issuance of the Preferred Securities in the manner and upon the terms
described in the Registration Statement and provided for in the Amended and
Restated Trust Agreement, the Guarantee, when duly executed and delivered by the
parties thereto, will be a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to the
limitations, if any, of Title 11 U.S.C., as amended, and of applicable
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights generally and by principles of equity and public policy.
We understand that you have received an opinion regarding the Preferred
Securities from Richards, Layton & Finger, P.A., special Delaware counsel for
the Company and the Trust. We are expressing no opinion with respect to the
matters contained in such opinion.
We are members of the Bar of the State of Ohio and do not purport to be
experts in the laws of any jurisdictions other than the laws of the State of
Ohio, including the applicable provisions of the Ohio Constitution and the
reported judicial decisions interpreting those laws, and the United States of
America.
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Second Bancorp Incorporated
and
Second Bancorp Capital Trust I
September 4, 2001
Page 5
This opinion is furnished to you for use in connection with the filing of
the Registration Statement and may not be used for any other purpose without our
prior written consent. We hereby consent to the use of our name under the
caption "Legal Matters" in the prospectus which forms a part of the Registration
Statement and to the filing of this opinion as an exhibit to the Registration
Statement. In giving this consent, 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.
Very truly yours,
/s/ Vorys, Sater, Seymour and Pease LLP
Vorys, Sater, Seymour and Pease LLP