NIDA & MALONEY
A L I M I T E D L I A B I L I T Y P A R T N E R S H I P
ATTORNEYS AT LAW
800 Anacapa Street
Santa Barbara, California 93101
PHONE 805-568-1151
FAX 805-568-1955
January 21, 2000
NETGATEWAY, INC.
300 Oceangate, 5th Floor
Long Beach, California 90802
Attn: Craig S. Gatarz, Esq.
General Counsel
Re: NETGATEWAY, INC. - Registration Statement on Form S-8
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Ladies and Gentlemen:
We have acted as counsel for NETGATEWAY, INC., a Delaware corporation (the
"Company"), in connection with the preparation of a registration statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), to be filed with the Securities and Exchange
Commission (the "Commission") on January 21, 2000, in connection with the
registration of an aggregate of 9,877,002 shares of the Company's Common Stock,
par value $.001 per share (collectively, the "Shares") (subject to adjustment
pursuant to Rule 416 under the Exchange Act), issued or issuable under certain
of the Company's stock option plans and individual employee stock awards
identified therein (the "Plans").
In connection with the preparation of the Registration Statement and the
proposed issuance and sale of the Shares in accordance with the Plans, the Form
S-8 prospectus to be delivered to participants in the Plans and the Form S-3
refoffer prospectus contained in the Registration Statement, we have made
certain legal and factual examinations and inquiries and examined, among other
things, such documents, records, instruments, agreements, certificates and
matters as we have considered appropriate and necessary for the rendering of
this opinion. We have assumed for the purpose of this opinion the authenticity
of all documents submitted to us as originals and the conformity with the
originals of all documents submitted to us as copies, and the genuineness of the
signatures thereon. As to various questions of fact material to this opinion, we
have, when relevant facts were not independently established, relied, to the
extent deemed proper by us, upon certificates and statements of officers and
representatives of the Company.
Based on the foregoing and in reliance thereon, it is our opinion that the
Shares have been duly authorized, and, to the extent and when issued and sold in
accordance with the Plans and the prospectus delivered or to be delivered to
participants in the Plans, the Shares are or will be validly issued, fully paid
and nonassessable.
On the basis of the foregoing, we are of the further opinion that the
provisions of the written documents constituting the Plans comply with the
requirements of ERISA pertaining to such provisions.
We hereby consent to the inclusion of our opinion as Exhibit 5.1 to the
Registration Statement and further consent to the reference to this firm in the
Registration Statement. In giving this consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Commission thereunder.
NIDA & MALONEY, LLP
Netgateway, Inc.
January 21, 2000
Page Two
This opinion is rendered solely for your benefit in accordance with the
subject transaction and is not to be otherwise used, circulated, quoted or
referred to without our prior written consent. We are opining herein only as to
the Delaware General Corporation Law, and we assume no responsibility as to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction.
Very truly yours,
/S/ NIDA & MALONEY, LLP