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EXHIBIT 4.2
CERTIFICATE OF
AMENDMENT OF THE
FIFTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WEBMETHODS, INC.
(Under Section 242 of the General Corporation
Law of the State of Delaware)
WEBMETHODS, INC. (the "Corporation"), a corporation duly organized and
existing under the General Corporation Law of the State of Delaware (the
"DGCL"), does, by Phillip Merrick, its President, attested by Jack L. Lewis, its
Secretary, under its corporate seal, hereby certify that:
I. The original Certificate of Incorporation of the Corporation
(previously known as "TransactNet, Inc.") was filed with the Secretary of State
of the State of Delaware on June 12, 1996. Certificates of Amendment of the
Certificate of Incorporation of the Corporation were filed with the Secretary
of State of the State of Delaware on January 21, 1997 and October 9, 1997. A
Certificate of Designation of the Corporation was filed with the Secretary of
State of the State of Delaware on October 21, 1997, and a Certificate of
Amendment and Restatement of the Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
December 12, 1997. A Certificate of Amendment was filed with the Secretary of
the State of Delaware on March 18, 1998. A Certificate of Second Amendment and
Restatement of the Certificate of Incorporation was filed with the Secretary of
the State of Delaware on September 18, 1998. A Certificate of Third Amendment
and Restatement of the Certificate of Incorporation was filed with the
Secretary of the State of Delaware on April 28, 1999. A Certificate of Fourth
Amendment and Restatement of the Certificate of Incorporation was filed with
the Secretary of the State of Delaware on November 3, 1999. A Certificate of
Fifth Amendment and Restatement of the Certificate of Incorporation was filed
with the Secretary of the State of Delaware on February 15, 2000.
II. This Certificate of Amendment of the Fifth Amended and Restated
Certificate of Incorporation further amends the Fifth Amended and Restated
Certificate of Incorporation by deleting from such Fifth Amended and Restated
Certificate of Incorporation Article FOURTH and substituting in lieu of such
provisions the text of the following paragraphs:
ARTICLE IV
The Corporation is authorized to issue two classes of stock to be
designated common stock ("Common Stock") and preferred stock ("Preferred
Stock"). The number of shares of Common Stock authorized to be issued is
five hundred million (500,000,000), par value $.01 per share, and the
number of shares of preferred stock authorized to be issued is fifty
million (50,000,000), par value $.01 per share.
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The board of directors is authorized, subject to any limitations
prescribed by law, to provide for the issuance of shares of preferred
stock in series, and by filing a certificate pursuant to the applicable
law of the State of Delaware (such certificate being hereinafter referred
to as a "Preferred Stock Designation"), to establish from time to time the
number of shares to be included in each such series, and to fix the
designation, powers, preferences, and rights of the shares of each such
series and any qualifications, limitations or restrictions thereof. The
number of authorized shares of Preferred Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by
the affirmative vote of the holders of a majority of the Common Stock
without a vote of the holders of the Preferred Stock, or of any series
thereof, unless a vote of any such holders is required pursuant to the
terms of any Preferred Stock Designation.
Except as otherwise expressly provided in any Preferred Stock
Designation, any new series of Preferred Stock may be designated, fixed
and determined as provided herein by the board of directors without
approval of the holders of the Common Stock or the holders of Preferred
Stock, or any series thereof, and any such new series may have powers,
preferences and rights, including, without limitation, voting rights,
dividend rights, liquidation rights, redemption rights and conversion
rights, senior to, junior to or pari passu with the rights of the Common
Stock, or any future class or series of Preferred Stock or Common Stock.
III. Pursuant to Sections 141 and 242 of the DGCL, at a meeting of the
Board of Directors of the Corporation held on July 7, 2000, the Board of
Directors of the Corporation deemed it advisable and in the best interests of
the Corporation to amend the Fifth Amended and Restated Certificate of
Incorporation as set forth in this Certificate of Amendment of the Fifth Amended
and Restated Certificate of Incorporation and directed that this Certificate of
Amendment of the Fifth Amended and Restated Certificate of Incorporation be
submitted for consideration and action thereon by the Stockholders of the
Corporation.
IV. Pursuant to Sections 211 and 242 of the DGCL, the holders of a
majority of the outstanding shares of capital stock of the Corporation entitled
to vote thereon voted in favor of, approved and adopted this Certificate of
Amendment of the Fifth Amended and Restated Certificate of Incorporation,
including the text set forth in Article II hereof.
V. The text of the Certificate of Amendment of the Fifth Amended and
Restated Certificate of Incorporation set forth in Article II hereof was duly
adopted by the Board of Directors and by the holders of two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote thereon
in accordance with the provisions of Sections 141, 211 and 242 of the General
Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment of the Fifth Amended and Restated Certificate of Incorporation to be
signed and executed in its corporate name by Phillip Merrick, its President, and
attested to by Jack L. Lewis, its Secretary, who declare, affirm, acknowledge
and certify under the penalties of perjury, that this is their free act and deed
and that the facts stated herein are true, as of the 15th day of August, 2000.
ATTEST: WEBMETHODS, INC.
/s/ Jack L. Lewis By:/s/ Phillip Merrick
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Jack L. Lewis, Secretary Phillip Merrick, President
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