FORM OF OPINION OF MCDERMOTT, WILL & EMERY
Published on
[LETTERHEAD OF MCDERMOTT, WILL & EMERY]
Exhibit 8.1
D R A F T
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November 28, 2001
Prudential Financial, Inc.
751 Broad Street
Newark, New Jersey 07102
Re: Equity Security Units
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Ladies and Gentlemen:
You have requested our opinion, as Tax Counsel for The Prudential Insurance
Company of America ("Company") and Prudential Financial, Inc. ("PFI"),
concerning certain United States federal income tax consequences to the holders
of certain investment units (the "Equity Security Units" or "Units") to be
issued by PFI, each consisting of a redeemable capital security issued by
Prudential Financial Capital Trust I (a "Capital Security") and a contract for
the purchase of a variable number of shares of common stock in PFI (a "Purchase
Contract"), pursuant to the Registration Statement (File Nos. 333-70888 and 333-
70888-01) as filed with the Securities and Exchange Commission (the
"Registration Statement").
In connection with rendering our opinion, we have examined (i) the
Registration Statement, (ii) the Amended and Restated Declaration of Trust of
Prudential Financial Capital Trust I, dated as of ___________, 2001, among
Prudential Financial, Inc., as sponsor, JPMorgan Chase Bank, as Property
Trustee, Chase Manhattan Bank, National Association, as Delaware Trustee, and
the Administrative Trustees named therein; (iii) the Indenture, dated as of
________, 2001, and the First Supplemental Indenture, dated as of ________,
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November 28, 2001
Page 2
2001, each between Prudential Financial, Inc., as Issuer, and JPMorgan Chase
Bank, as Debenture Trustee; (iv) the Purchase Contract Agreement between
Prudential Financial, Inc. and JPMorgan Chase Bank, as Purchase Contract Agent,
dated as of __________, 2001; (v) the Pledge Agreement between Prudential
Financial, Inc. and JPMorgan Chase Bank, as Purchase Contract Agent, Collateral
Agent, Custodial Agent, and Securities Intermediary, dated as of ___________,
2001; [(vi) the Debenture Subscription Agreement, dated ____________; (vii) the
Common Securities Subscription Agreement, dated ___________;] (viii) the Capital
Securities Guarantee Agreement, between Prudential Financial, Inc. and JPMorgan
Chase Bank, as Guarantee Trustee, dated as of _____________, 2001; (ix) the
Common Securities Guarantee Agreement by Prudential Financial, Inc., dated as of
____________, 2001; (x) the Remarketing Agreement Exhibit to the Amended and
Restated Declaration of Trust; (xi) letters from Goldman, Sachs & Co., dated
____________; and (xii) such other documents, agreements and instruments as we
have deemed relevant and necessary as a basis for the opinion set forth herein.
In rendering this opinion, we have assumed that (i) the characteristics,
terms, and conditions of the Capital Securities and the Purchase Contracts will
be the same in all material respects as those set forth in the Registration
Statement and the above-described documents; (ii) all of the factual
information, descriptions, and representations contained in the documents
referred to herein are and, as of the date of issuance of the Units, will be
accurate and complete in all material respects; (iii) any representation or
other statement contained in any document referred to herein and made "to the
best of the knowledge" or similarly qualified is and, as of the date of issuance
of the Units, will be, in each case, correct without such qualification; and
(iv) no actions have been, or will be, taken that are inconsistent with any
representation or other statement contained in any document referred to herein.
In our examination of such materials, we also have assumed the genuineness
of all signatures, the legal capacity of all natural persons, the authenticity
of all documents submitted to us as originals, the conformity to the original
documents of all documents submitted to us as certified or photocopies, the
authenticity of the originals of such documents, and that there has been (or
will be, by the date of issuance of the Units) due execution and delivery of all
documents where due execution and delivery are prerequisites
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November 28, 2001
Page 3
to the effectiveness thereof. We have not independently verified any factual
matters set forth in the foregoing or relating to the issuance of the Units.
Accordingly, our opinion does not take into account any matters that might have
been disclosed by independent verification.
Based on the foregoing, in reliance thereon and subject thereto, it is our
opinion that the statements contained in the Registration Statement under the
caption "U.S. Federal Income Tax Consequences," insofar as they purport to
describe the principal U.S. federal income tax consequences to holders of the
Units and subject to the limitations, qualifications, and assumptions described
under that caption, are accurate in all material respects. Because this opinion
is being delivered before the issuance of the Units, it must be considered
prospective and dependent on future events.
Our opinion is limited to the foregoing and does not address any other
Federal income tax consequences of the ownership of the Units or the effect of
such ownership under state, local, or foreign law. Our opinion represents our
best legal judgment as to the matters addressed herein, but is not binding on
the Internal Revenue Service ("IRS") or the courts. Accordingly, no assurance
can be given that this opinion, if contested, would be sustained by a court.
Our opinion is based on the Internal Revenue Code of 1986, as amended,
Treasury Regulations, case law, and IRS rulings as they exist on the date
hereof. These authorities are all subject to change and such change may be made
with retroactive effect. We can give no assurance that after any such change,
our opinion would not be different. By rendering our opinion, we do not
undertake to advise you of any changes in any law, which may occur after the
date of this opinion.
The opinion contained herein is solely for your benefit and may not be
relied on by, or furnished to, any other person, firm, or corporation without
our prior written consent, with the exception that we hereby consent to the
filing of this opinion as Exhibit 8.1 to the Registration Statement and to the
reference to our firm name therein. In giving this consent, we do not admit
that we are within the category of persons whose consent is required under
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November 28, 2001
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Section 7 of the Securities Act of 1933, as amended, or the rules or regulations
of the SEC promulgated thereunder.
Very truly yours,
McDermott, Will & Emery