EXHIBIT 5.1
[KIRKLAND & ELLIS LLP LETTERHEAD]
April 28, 2004
Conseco, Inc.
11825 N. Pennsylvania Street
Carmel, Indiana 46032
Re: Conseco, Inc.
Registration Statement on Form S-1
Ladies and Gentlemen:
We are acting as special counsel to Conseco, Inc., a Delaware
corporation (the "Company"), in connection with the proposed registration by the
Company of 50,600,000 shares, including 6,600,000 shares to cover
over-allotments (if any) (the "Common Shares"), of its common stock, par value
$0.01 per share (the "Common Stock"), and 23,000,000 shares, including 3,000,000
shares to cover over-allotments (if any) (the "Preferred Shares," and together
with the Common Shares, the "Shares"), of its Mandatorily Convertible Preferred
Stock, Class B, par value $0.01 per share (the "Class B Preferred Stock"),
pursuant to a Registration Statement on Form S-1, initially filed with the
Securities and Exchange Commission (the "Commission") on January 29, 2004 under
the Securities Act of 1933, as amended (the "Act") (such Registration Statement,
as amended or supplemented, is hereinafter referred to as the "Registration
Statement").
In that connection, we have examined such corporate proceedings,
documents, corporate records and matters of law as we have deemed necessary for
the purposes of this opinion, including, among other things, the organizational
documents of the Company and the Registration Statement and exhibits thereto.
For purposes of this opinion, we have assumed the authenticity of all documents
submitted to us as originals, the conformity to the originals of all documents
submitted to us as copies and the authenticity of the originals of all documents
submitted to us as copies. We have also assumed the legal capacity of all
natural persons, the genuineness of the signatures of persons signing all
documents in connection with which this opinion is rendered, the authority of
such persons signing on behalf of the parties thereto other than the Company and
the due authorization, execution and delivery of all documents by the parties
thereto other than the Company. As to any facts material to the opinions
expressed herein, we have relied upon statements and representations of officers
and other representatives of the Company or certificates or comparable documents
of public officials and officers and other representatives of the Company.
Based upon and subject to the qualifications, assumptions and
limitations set forth in this letter, we are of the opinion that:
(1) When the Registration Statement has become effective under the Act,
the Board of Directors of the Company has taken all necessary action to approve
the issuance and sale of the Shares and when appropriate certificates
representing the Shares are duly countersigned by the Company's transfer agent
and registrar and delivered against payment of the agreed upon consideration
therefor in accordance with the terms of the applicable underwriting agreement,
the Shares, when issued, will be validly issued, fully paid and non-assessable.
(2) Assuming that the Registration Statement has become effective under
the Act and that the Board of Directors of the Company has taken all necessary
action to approve the issuance of the shares of Common Stock that may be issued
upon conversion of the Preferred Shares and that there are a sufficient number
of shares of Common Stock available for issuance under the Company's Certificate
of Incorporation, the shares of Common Stock that may be issued upon conversion
of the Preferred Shares, when issued and delivered upon such conversion in the
manner provided in the Certificate of Designations relating to the Class B
Preferred Stock, and when appropriate certificates representing such shares are
duly countersigned by the Company's transfer agent and registrar, will be
validly issued, fully paid and non-assessable.
Our opinions expressed above are subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of (i)
any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or other similar law affecting the enforcement of
creditors' rights generally, (ii) general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law) and (iii)
public policy considerations which may limit the rights of parties to obtain
certain remedies.
Our advice on every legal issue in this letter is based exclusively on
the General Corporation Law of the State of Delaware, including the applicable
provisions of the Constitution of the State of Delaware and reported judicial
opinions interpreting such laws, and the federal laws of the United States, and
represents our opinion as to how such issue would be resolved were it to be
considered by the highest court in the jurisdiction that enacted such law. We do
not find it necessary for the purposes of this opinion, and accordingly we do
not purport to cover herein, the application of the securities or "Blue Sky"
laws of the various states to the issuance and sale of the Shares.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. We also consent to the reference to our firm under the
heading "Legal Matters" in the Registration Statement. In giving this consent,
we do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of
the Commission.
This opinion is limited to the specific issues addressed herein, and no
opinion may be inferred or implied beyond that expressly stated herein. This
opinion speaks as of the effective date of the Registration Statement. We assume
no obligation to revise or supplement this opinion should the General
Corporation Law of the State of Delaware or the federal laws of the United
States be changed by legislative action, judicial decision or otherwise.
This opinion is furnished to you in connection with the filing of the
Registration Statement, and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Very truly yours,
/s/ Kirkland & Ellis LLP
---------------------------
Kirkland & Ellis LLP