Exhibit 5(a)
[Letterhead of Cadwalader, Wickersham & Taft LLP]
November 10, 2004
The Bear Stearns Companies Inc.
383 Madison Avenue
New York, NY 10179
Ladies and Gentlemen:
We have acted as special counsel to The Bear Stearns Companies Inc., a Delaware
corporation (the "Company"), in connection with the preparation of the
Prospectus Supplement, dated November 4, 2004 (the "Prospectus Supplement"), to
the Prospectus, dated November 17, 2003 (the "Prospectus"), relating to
$200,000,000 principal amount of 5.70% Global Notes due 2014 (the "Notes"). An
aggregate of $1,500,000,000 of 5.70% Global Notes due 2014 was issued by the
Company on November 6, 2002, January 17, 2003 and April 14, 2003; the Notes are
a further issuance of and are consolidated to form a single series with the
5.70% Global Notes due 2014 issued on November 6, 2002, January 17, 2003 and
April 14, 2003. The Prospectus and Prospectus Supplement are included in the
Registration Statement on Form S-3 (Registration No. 333-109793) (the
"Registration Statement") filed with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), to which this letter is an exhibit.
In rendering the opinions set forth below, we have examined and relied upon,
among other things, (a) the Registration Statement, including the Prospectus and
Prospectus Supplement constituting a part thereof, (b) the Indenture, dated as
of May 31, 1991, as supplemented by the First Supplemental Indenture, dated as
of January 29, 1998 (as supplemented, the "Indenture"), between the Company and
JPMorgan Chase Bank (formerly, The Chase Manhattan Bank), as Trustee, filed as
an exhibit to the Registration Statement, (c) the form of Note incorporated by
reference as an exhibit to the Registration Statement and (d) originals, copies
or specimens, certified or otherwise identified to our satisfaction, of such
certificates, corporate and public records, agreements and instruments and other
documents as we have deemed appropriate as a basis for the opinions expressed
below. In such examination we have assumed the genuineness of all signatures,
the authenticity of all documents, agreements and instruments submitted to us as
originals, the conformity to original documents, agreements and instruments of
all documents, agreements and instruments submitted to us as copies or
specimens, the authenticity of the originals of such documents, agreements and
instruments submitted to us as copies or specimens, the conformity of the text
of each document filed with the Commission through the Commission's Electronic
Data Gathering, Analysis and Retrieval System to the printed document reviewed
by us, and the accuracy of the matters set forth in the documents, agreements
and instruments we reviewed. We have further assumed that all statements, facts,
representations and covenants made therein are and remain true (without regard
to any qualifications stated therein and without undertaking to verify such
statements, facts and representations by independent investigation), that the
respective parties thereto and all parties referred to therein will act in all
respects at all relevant times in conformity with the requirements and
provisions of such documents, and that none of the terms and conditions
contained therein has been or will be waived or modified in any respect. As to
matters of fact relevant to the opinions expressed herein, we have relied upon
certificates and oral or written statements and other information obtained from
the Company, the other parties to the transaction referenced herein, and public
officials. Except as expressly set forth herein, we have not undertaken any
independent investigation (including, without limitation, conducting any review,
search or investigation of any public files, records or dockets) to determine
the existence or absence of the facts that are material to our opinions, and no
inference as to our knowledge concerning such facts should be drawn from our
reliance on the representations of the Company and others in connection with the
preparation and delivery of this letter. In addition, we have assumed that the
Notes will be executed and delivered in substantially the form in which they are
filed as an exhibit to the Registration Statement.
We express no opinion concerning the laws of any jurisdiction other than the
laws of the State of New York and, to the extent expressly referred to in this
letter, the federal laws of the United States of America, and, with respect to
our opinion in paragraph 1 below, the General Corporation Law of the State of
Delaware. While we are not licensed to practice law in the State of Delaware, we
have reviewed applicable provisions of the Delaware General Corporation Law as
we have deemed appropriate in connection with the opinions expressed herein.
Except as described, we have neither examined nor do we express any opinion with
respect to Delaware law.
Based upon and subject to the qualifications set forth herein, we are of the
opinion that:
1. The Notes have been duly authorized and executed by the Company and, when
the Notes have been duly authenticated by the Trustee in the manner
contemplated in the Indenture, and sold and delivered by the Company in
the manner contemplated in the Prospectus and the Prospectus Supplement,
the Notes will be legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, receivership or other laws relating to or affecting creditors'
rights generally, and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity), and
will be validly issued and outstanding and entitled to the benefits
provided by the Indenture.
2. The statements made in the Prospectus Supplement under the
caption "Certain US Federal Income Tax Considerations," to the
extent such statements summarize material federal tax
consequences of the purchase, beneficial ownership and
disposition of the Notes to the holders thereof described
therein, are correct in all material respects. All such
statements are based upon current law, which is subject to
change, possibly with retroactive effect, and we assume no
obligation to update or supplement this letter to reflect any
facts, circumstances, laws, rules or regulations, or any
changes thereto, or any court or other authority or body
decisions or governmental or regulatory authority
determinations which may hereafter occur or come to our
attention. Further, there can be no assurance that the Internal
Revenue Service will not take a contrary position.
We disclaim any obligation to update this letter for changes in fact or law, or
otherwise.
We hereby consent to the filing of this letter as an exhibit to the Registration
Statement and to the reference to this Firm in the Prospectus Supplement
constituting a part of the Registration Statement under the captions "Certain US
Federal Income Tax Considerations" and "Legal Matters," without admitting that
we are "experts" within the meaning of the Securities Act or the rules and
regulations of the Commission issued thereunder with respect to any part of the
Registration Statement, including this exhibit.
Very truly yours,
/s/ Cadwalader, Wickersham & Taft LLP