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EXHIBIT 5.1
[Letterhead of Vorys, Sater, Seymour and Pease LLP]
September 25, 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 Registration Statement on Form S-3 (the "Rule 462(b)
Registration Statement") to be filed with the Securities and Exchange Commission
(the "Commission") on or about September 25, 2001 pursuant to Rule 462(b)
promulgated under the Securities Act of 1933, as amended (the "Act"), for the
purpose of registering (i) additional Cumulative Trust Preferred Securities to
be issued by the Trust representing preferred undivided beneficial interests in
the Trust (the "Preferred Securities"), (ii) additional Subordinated Debentures
of the Company 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 additional 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 25, 2001
Page 2
holders of the additional Preferred Securities in consideration of their
purchase of the additional 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, incorporated by reference in the Rule
462(b) 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 incorporated by reference
in the Rule 462(b) Registration Statement;
(e) the form of Guarantee, incorporated by reference in the Rule
462(b) Registration Statement;
(f) the form of Indenture, incorporated by reference in the Rule 462(b)
Registration Statement; and
(g) the form of Subordinated Debentures, included as an exhibit to the
Indenture and incorporated by reference in the Rule 462(b)
Registration Statement.
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Second Bancorp Incorporated
and
Second Bancorp Capital Trust I
September 25, 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 additional Subordinated Debentures have been duly authorized by all
requisite corporate action of the Company for issuance by the Company. After the
Rule 462(b) Registration Statement, as
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Second Bancorp Incorporated
and
Second Bancorp Capital Trust I
September 25, 2001
Page 4
the same may be amended, has become effective under the Act and the Indenture
has been duly executed and delivered, the additional 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
Rule 462(b) 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 Rule 462(b)
Registration Statement, as the same may be amended, has become effective under
the Act and upon the issuance of the additional Preferred Securities in the
manner and upon the terms described in the Rule 462(b) 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 additional
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 25, 2001
Page 5
This opinion is furnished to you for use in connection with the filing of
the Rule 462(b) 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 is incorporated by
reference into the Rule 462(b) Registration Statement and to the filing of this
opinion as an exhibit to the Rule 462(b) 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