OPINION OF MCCARTER & ENGLISH
Published on
Exhibit 5.3
MCCARTER & ENGLISH, LLP
ATTORNEYS AT LAW
FOUR GATEWAY CENTER
1OO MULBERRY STREET
P.O. BOX 652
NEWARK, NJ O71O1-O652
Phone (973) 622-4444
Fax (973)-624-7070
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) 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 and sold pursuant to the Purchase Contracts
("Purchase Contract Stock") and the related rights ("Rights") issuable pursuant
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 special New Jersey
corporate 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 3 and 4 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 Department of Treasury 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
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Prudential Financial, Inc.
November 2, 2001
Page 2
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) The Company is duly incorporated and existing under the laws of
the State of New Jersey.
(2) 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, a
purchase contract agreement (the "Purchase Contract Agreement") relating to
the Purchase Contracts and the Units, a rights agreement relating to the
Rights (the "Rights Agreement"), and a guarantee agreement relating to the
Guarantee (the "Guarantee Agreement") have each been duly authorized by the
Board of Directors of the Company, the Indenture, the First Supplemental
Indenture, the Purchase Contract Agreement, the Rights Agreement and the
Guarantee Agreement will each have been duly authorized by the Company.
(3) When the terms 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 Contact Stock will be validly
issued, fully paid and nonassessable.
(4) Assuming that the Rights Agreement has been duly authorized,
executed and delivered by the Rights Agent, 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.
In connection with our opinion set forth in paragraph (4) 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 facts and
circumstances, is beyond the scope of such opinion. In connection with our
opinions set forth in paragraphs (3) and (4), we have assumed
Prudential Financial, Inc.
November 2, 2001
Page 3
that the Purchase Contract Agreement and the Purchase Contracts 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.
The foregoing opinion is limited to the laws of the State of New
Jersey, and we are expressing no opinion as to the effect of the laws of any
other jurisdiction.
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/ McCarter & English, LLP