OPINION OF MCCARTER & ENGLISH, LLP
Published on
Exhibit 5.3
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) 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 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) 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. This
opinion is in addition to our opinion that was filed as Exhibit 5.3 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 3 and 4 below will be issued only after the following
shall have occurred: (a) The registration statement on Form S-1 filed pursuant
to Rule 462(b) under the Act (the "Registration
Baltimore, MD Boca Raton, FL Cherry Hill, NJ Hartford, CT New York, NY
Philadelphia, PA Wilmington, DE
Prudential Financial, Inc.
December 13, 2001
Page 2
Statement") of the Company and the Trust relating to the additional Debentures,
Purchase Contracts, Capital Securities, Units, Purchase Contract Stock, Rights
and Guarantee shall have become effective under 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 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 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
Prudential Financial, Inc.
December 13, 2001
Page 3
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 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,
McCarter & English, LLP