OPINION OF SULLIVAN & CROMWELL
Published on
Exhibit 5.1
[Letterhead of Sullivan & Cromwell]
December 13, 2001
Prudential Financial, Inc.,
751 Broad Street,
Newark, NJ 07102.
Ladies and Gentlemen:
In connection with the registration pursuant to Rule 462(b) under the
Securities Act of 1933 (the "Act") of additional (i) debentures due 2006 (the
"Debentures") of Prudential Financial, Inc., a New Jersey corporation (the
"Company"), (ii) purchase contracts ("Purchase Contracts") to purchase shares of
Common Stock, par value $0.01 per share ("Common Stock"), of the Company, (iii)
capital securities ("Capital Securities") of Prudential Financial Capital Trust
I, a Delaware business trust (the "Trust"), (iv) equity security units ("Units")
of the Company, which represent ownership of the Purchase Contracts and the
Capital Securities, (v) shares of Common Stock issuable pursuant to the Purchase
Contracts ("Purchase Contract
Prudential Financial, Inc. -2-
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 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.
This opinion is in addition to our opinion that was filed as Exhibit 5.1 to the
Company's and the Trust's registration statement on Form S-1 (File Numbers
333-70888 and 333-70888-01) (the "Initial Registration Statement"), which
Initial Registration Statement is incorporated by reference into the
Registration Statement pursuant to Rule 462(b) under the Act. 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 on Form S-1 filed pursuant to 462(b)
under the Act (the "Registration Statement") of the Company and the Trust
relating to the additional
Prudential Financial, Inc. -3-
Debentures, Purchase Contracts, Capital Securities, Units, Purchase Contract
Stock, 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 incorporated by reference as an
exhibit to the Registration Statement shall have been duly filed with the
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:
Prudential Financial, Inc. -4-
(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 incorporated by reference 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 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
Prudential Financial, Inc. -5-
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 incorporated by reference 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 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
Prudential Financial, Inc. -6-
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 Association, as Delaware trustee, and the administrative
trustees named therein (the "Declaration"), relating to the Capital
Securities substantially in the form incorporated by reference 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
Prudential Financial, Inc. -7-
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.
(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
Prudential Financial, Inc. -8-
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
incorporated by reference 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
Agreement"), relating to the Guarantee with respect to the Capital
Securities substantially in the form incorporated by reference as an
exhibit to the Registration Statement has been duly authorized,
Prudential Financial, Inc. -9-
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
facts and circumstances and, accordingly, is beyond the scope of such
opinion.
Prudential Financial, Inc. -10-
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 December 13, 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 December 13, 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.
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
Prudential Financial, Inc. -11-
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