OPINION OF SULLIVAN & CROMWELL
Published on
Exhibit 5.1
[LETTERHEAD OF SULLIVAN & CROMWELL]
November 2, 2001
Prudential Financial, Inc.,
751 Broad Street,
Newark, NJ 07102.
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933 (the
"Act") of (i) the debentures due 2006 (the "Debentures") of Prudential
Financial, Inc., a New Jersey corporation (the "Company"), (ii) the purchase
contracts ("Purchase Contracts") to purchase shares of Common Stock, par value
$0.01 per share ("Common Stock"), of the Company, (iii) the capital securities
("Capital Securities") of Prudential Financial Capital Trust I, a Delaware
business trust (the "Trust"), (iv) the equity security units ("Units") of the
Company, which represent ownership of the Purchase Contracts and the Capital
Securities, (v) the shares of Common Stock issuable pursuant to the Purchase
Contracts ("Purchase Contract Stock") and the related rights ("Rights") issuable
pursuant
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to a rights agreement between the Company and EquiServe Trust Company, N.A., as
Rights Agent (the "Rights Agent") and (vi) the guarantee (the "Guarantee") of
the Company relating to the Capital Securities, we, as your counsel, have
examined such corporate records, certificates and other documents, and such
questions of law, as we have considered necessary or appropriate for the
purposes of this opinion. In rendering this opinion, we have assumed that each
of the securities referenced in paragraphs (1) through (6) below will be issued
only after the following shall have occurred: (a) The registration statement
(File Nos. 333-70888 and 333-70888-01) (the "Registration Statement") of the
Company and the Trust relating to the Debentures, the Purchase Contracts, the
Capital Securities, the Units, the Purchase Contract Stock, the Rights and the
Guarantee shall have become effective under the Securities Act of 1933, as
amended (the "Act"); (b) the Company's Amended and Restated Certificate of
Incorporation (the "Amended and Restated Certificate of Incorporation")
substantially in the form to be filed as an exhibit to the Registration
Statement shall have been duly filed with the
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Secretary of State of the State of New Jersey and become effective pursuant to
its terms, thereby authorizing the Company's classes of common stock, including
the Common Stock (and, thereby, the Purchase Contract Stock); and (c) the
Commissioner of the Department of Banking and Insurance of the State of New
Jersey shall have given final approval for the issuance of the Debentures, the
Purchase Contracts, the Capital Securities, the Units, the Purchase Contract
Stock and the related Rights and the Guarantee and such securities shall have
been issued in accordance with such final approval. Upon the basis of such
examination, we advise you that, in our opinion:
(1) When an indenture between the Company and The Chase Manhattan
Bank, as trustee (the "Trustee") (the "Indenture") and a first supplemental
indenture between the Company and the Trustee (the "First Supplemental
Indenture") to the Indenture relating to the Debentures (each substantially
in the form to be filed as an exhibit to the Registration Statement) have
been duly authorized, executed and delivered, the terms of the Debentures
and of their issuance and sale have been duly established in conformity
with the Indenture and the First
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Supplemental Indenture so as not to violate any applicable law or result in
a default under or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company, and
the Debentures have been duly executed and authenticated in accordance with
the Indenture and the First Supplemental Indenture and issued and sold as
contemplated in the Registration Statement, the Debentures will constitute
valid and legally binding obligations of the Company, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(2) When a purchase contract agreement (the "Purchase Contract
Agreement") relating to the Purchase Contracts and the Units substantially
in the form to be filed as an exhibit to the Registration Statement has
been duly authorized, executed and delivered, the terms of the Purchase
Contracts and the Units and of their
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respective issuance and sale have been duly established in conformity with
the Purchase Contract Agreement so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument binding
upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the
Company, and the Unit certificates have been duly executed and
authenticated in accordance with the Purchase Contract Agreement and issued
and sold as contemplated in the Registration Statement, the Purchase
Contracts and the Units evidenced by the Unit certificates will constitute
valid and legally binding obligations of the Company, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(3) When an amended and restated declaration of trust among the
Company, The Chase Manhattan Bank, as property trustee, Chase Manhattan
Bank USA, National
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Association, as Delaware trustee, and the administrative trustees named
therein (the "Declaration"), relating to the Capital Securities
substantially in the form to be filed as an exhibit to the Registration
Statement has been duly authorized, executed and delivered, the terms of
the Capital Securities and of their issuance and sale have been duly
established in conformity with the Declaration so as not to violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company, and the Capital Securities have been duly
executed and authenticated in accordance with the Declaration and issued
and sold as contemplated in the Registration Statement, the Capital
Securities will constitute valid and legally binding obligations of the
Trust, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
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(4) When the terms of the issuance and sale of the Purchase Contract
Stock have been duly established in conformity with the Company's Amended
and Restated Certificate of Incorporation and by-laws, and the Purchase
Contract Stock has been duly issued and sold out of the Company's
authorized and unissued capital as contemplated by the Registration
Statement and issued pursuant to the Purchase Contracts, the Purchase
Contract Stock will be validly issued, fully paid and nonassessable.
(5) Assuming that the Rights Agreement substantially in the form to be
filed as an exhibit to the Registration Statement has been duly authorized,
executed and delivered, when the Purchase Contract Stock has been validly
issued and sold out of the Company's authorized and unissued capital as
contemplated by the Registration Statement and issued pursuant to the
Purchase Contracts, the Rights attributable to the Purchase Contract Stock
will be validly issued.
(6) When a capital securities guarantee agreement between the Company
and The Chase Manhattan Bank, as guarantee trustee (the "Guarantee
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Agreement"), relating to the Guarantee with respect to the Capital
Securities substantially in the form to be filed as an exhibit to the
Registration Statement has been duly authorized, executed and delivered,
the terms of the Guarantee and of its issuance and sale have been duly
established in conformity with the Guarantee Agreement so as not to violate
any applicable law or result in a default under or breach of any agreement
or instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company, the Guarantee will constitute a valid and
legally binding obligation of the Company, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
In connection with our opinion set forth in paragraph (5) above, we
note that the question whether the Board of Directors of the Company might be
required to redeem the Rights at some future time will depend upon the
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facts and circumstances and, accordingly, is beyond the scope of such opinion.
The foregoing opinion is limited to the Federal laws of the United
States and the laws of the State of New Jersey and the State of Delaware, and we
are expressing no opinion as to the effect of the laws of any other
jurisdiction. With respect to all matters of New Jersey law, we have relied upon
the opinion, dated November 2, 2001, of McCarter & English, LLP, and our opinion
is subject to the same assumptions, qualifications and limitations with respect
to such matters as are contained in such opinion of McCarter & English, LLP.
With respect to all matters of Delaware law, we have relied upon the
opinion, dated November 2, 2001, of Richards, Layton & Finger, P.A., and our
opinion is subject to the same assumptions, qualifications and limitations with
respect to such matters as are contained in such opinion of Richards, Layton &
Finger, P.A.
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Also, we have relied as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by us to be
responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to us under the heading "Validity
of the Equity Security Units" in the Prospectus. 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 Act.
Very truly yours,
/s/ Sullivan & Cromwell