E-MEDSOFT COM
EX-10.17
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<TYPE>EX-10.17
<SEQUENCE>4
<FILENAME>v75312ex10-17.txt
<DESCRIPTION>EX-10.17
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<PAGE>   1
                                                                   EXHIBIT 10.17


                      CERTIFICATE OF DESIGNATION OF SERIES

                   AND DETERMINATION OF RIGHTS AND PREFERENCES

                    FOR SERIES A CONVERTIBLE PREFERRED STOCK

                                OF E-MEDSOFT.COM,

                              A NEVADA CORPORATION


        John Andrews certifies that:

        A.      He is the President and Secretary of e-MedSoft.com, a Nevada
corporation (the "Corporation").

        B.      The Corporation's Articles of Incorporation authorize the
issuance of up to 5,000,000 shares of preferred stock, $0.001 par value each
(the "Preferred Stock"), which may be issuable from time to time in one or more
series.

        C.      Pursuant to the authority conferred on the Board of Directors by
Article IV of the Articles of Incorporation, and pursuant to the provisions of
Section 78.1955 of the Nevada Revised Statutes, the Board of Directors, at a
meeting duly held on August 1, 2001, adopted resolutions providing for the
designation and issuance of a series of 500,000 shares of convertible preferred
stock of the Corporation, $0.001 par value each (the "Series A Preferred
Stock").

        D.      The Certificate of Designation creating the powers,
designations, preferences, limitations, restrictions and rights of the Series A
Preferred Stock reads as follows:

1.      Dividends.

        1.1     The holders of Series A Preferred Stock shall be entitled to
receive, when and if declared by the Board of Directors and out of funds legally
available therefore dividends per share at a rate equal to the amount of
dividends payable per share of the Corporation's common stock, $0.001 par value
(the "Common Stock") multiplied by one hundred (100).

        1.2     In no event, so long as any shares of Series A Preferred Stock
remain outstanding shall any dividend whatsoever be declared or paid upon,
whether in cash or property, nor shall any distribution be made upon, any Common
Stock, other than a dividend or distribution payable solely in shares of Common
Stock, nor shall any shares of Common Stock be purchased or redeemed by the
Corporation, (except for acquisitions of Common Stock by the Corporation
pursuant to agreements which permit or require the Corporation to repurchase
such shares upon termination of services to the Corporation from former
employees or in exercise of the Corporation's right of first refusal upon a
proposed transfer) nor shall any moneys be paid to or

<PAGE>   2

made available for a sinking fund for the purchase or redemption of any shares
of Common Stock, unless (i) all accrued and unpaid dividends are first declared
and paid for all periods after the Original Issue Date with respect to the
Series A Preferred Stock and (ii) the holders of the outstanding shares of
Series A Preferred Stock shall have been converted pursuant to Section 3 below
to amounts as if the Series A Preferred Stock had been converted pursuant to
Section 3 below to shares of Common Stock. After payment or setting apart for
payment of all preferential amounts payable to the holders of Series A Preferred
Stock, any dividends declared or paid upon any Common Stock shall be distributed
to the holders of Common Stock and Series A Preferred Stock on a pro rata basis
as though such holders of Series A Preferred Stock were the holders of the
number of shares of Common Stock into which such shares of Series A Preferred
Stock were convertible as of the record date fixed for declaration of such
distribution.

2.      Liquidation Event.

        2.1     Each share of Series A Preferred Stock is entitled to a
preference upon a Liquidation Event (as defined below) equal to $100 per share,
plus accrued but unpaid cumulative dividends, whether or not declared (in the
aggregate, "Liquidation Payments"). After the payment or setting apart for
payment of all preferential amounts payable to the holders of Series A Preferred
Stock pursuant to this Section 2, all remaining assets and surplus funds shall
be distributed to the holders of Common Stock and Series A Preferred Stock pro
rata, as converted basis as though such holders of Series A Preferred Stock were
the holders of the number of shares of Common Stock into which such shares of
Series A Preferred Stock were convertible as of the record date fixed for
declaration of such distribution. The Corporation must give written notice of a
Liquidation Event (stating a payment date, the amount of the Liquidation Payment
and the place where said sums shall be payable) by first class mail, postage
prepaid, not less than thirty (30) or more than sixty (60) days prior to the
payment date stated therein, to the holders of record of the Series A Preferred
Stock and the Common Stock, such notice to be addressed to each shareholder at
its mailing address as shown by the records of the Corporation. A "Liquidation
Event" shall be a liquidation, dissolution or winding up of the Corporation. A
Liquidation Event shall not include any transaction whereby the Corporation
shall merge into or consolidate with any other corporation or other such
transaction.

        2.2     In the event of a Liquidation Event, if the consideration
received by the Corporation is other than cash, its value will be deemed its
fair market value as determined in good faith by the Board of Directors of the
Company. Any securities shall be valued as follows:

                (a)     Securities not subject to investment letter or other
similar restrictions on free marketability:

                (1)     If traded on a securities exchange, the value shall be
deemed to be the average of the closing prices of the securities on such
exchange over the thirty (30) day period ending three (3) days prior to the
closing;

                (2)     If actively traded over-the-counter, the value shall be
deemed to be the average of the closing bid or sale prices (whichever is
applicable) over the thirty (30) day period ending three (3) days prior to the
closing; and

<PAGE>   3

                (3)     If there is no active public market, the value shall be
the fair market value thereof, as determined in good faith by the Board of
Directors of the Corporation.

                (b)     The method of valuation of securities subject to
investment letter or other restrictions on free marketability (other than
restrictions arising solely by virtue of a shareholder's status as an affiliate
or former affiliate) shall be to make an appropriate discount from the market
value determined as above in Paragraph 2.2(a) to reflect the approximate fair
market value thereof, as determined in good faith by the Board of Directors of
the Corporation.

If the consideration received is both other than cash or securities, its value
will be deemed its fair market value as determined in good faith by the Board of
Directors of the Company.

        2.3     In the event the requirements of this Paragraph 2 are not
complied with, the Corporation shall forthwith either cause the closing of the
transaction to be postponed until such requirements have been complied with, or
cancel such transaction, in which event the rights, preferences and privileges
of the holders of Series A Preferred shall revert to and be the same as such
rights, preferences and privileges existing immediately prior to the date of the
first notice referred to in Paragraph 2.1 above.

3.      Conversion.

        3.1     Automatic Conversion. Subject to the terms and conditions of
this Paragraph 3.1, each Share of Series A Preferred Stock will be converted
automatically without any further action on the part of any holder or the
Company, and shall thereafter represent 100 shares of Common Stock (the
"Conversion Ratio") upon the date upon which a majority of the shareholders of
the Corporation approve the issuance of the Common Stock upon conversion of the
Series A Preferred Stock at the Conversion Ratio (an "Automatic Conversion
Event"). Upon the occurrence of an Automatic Conversion Event, each holder of
Series A Preferred Stock shall be unconditionally obligated to surrender to the
Corporation the certificates representing each Series A Preferred Stock of such
holder, and the Corporation shall be unconditionally obligated to issue to such
holder in exchange for each such Series A Preferred Stock a certificate
representing one hundred shares (100) of Common Stock. Except as provided in
Section 3.2, holders of Series A Preferred Stock cannot exchange their Series A
Preferred Stock voluntarily.

        3.2     Optional Conversion. Each holder of any Shares of Series A
Preferred Stock may elect to convert some or all of such Shares at the
Conversion Ratio upon the date on which the Corporation's Common Stock is
removed from or is held, without any right of appeal, to be ineligible for
trading on the American Stock Exchange, LLC, or successor exchange (such removal
or holding shall be referred to herein as an "Optional Conversion Event"). Upon
an Optional Conversion Event, the right of any holder to convert some or all of
his or her Shares of Series A Preferred Stock may be exercised by such holder by
giving written notice to the Corporation that the holder elects to convert a
stated number of shares of Series A Preferred Stock into Common Stock and by
surrender of a certificate or certificates for the shares so to be converted to
the Corporation at its principal office (or such other office or agency of the
Corporation as the Corporation may designate by notice in writing to the holder
or holders of the

<PAGE>   4

Series A Preferred Stock) at any time during its usual business hours on the
date set forth in such notice, together with a statement of the name or names
(with address), subject to compliance with applicable laws to the extent such
designation shall involve a transfer, in which the certificate or certificates
for shares of Common Stock are to be issued.

        3.3     Issuance of Certificates; Time Conversion Effected. On the first
business day following an Automatic Conversion Event or the submission by a
holder of the notice described in Section 3.2 subsequent to an Optional
Conversion Event, the Corporation shall issue and deliver, or cause to be issued
and delivered, to the holder, registered in such name or names as such holder
may direct, subject to compliance with applicable laws to the extent such
designation shall involve a transfer, a certificate or certificates for the
number of whole shares of Common Stock issuable upon the conversion of such
share or shares of Series A Preferred Stock. To the extent permitted by law,
such conversion shall be deemed to have been effected as of the close of
business on the date on which the earliest Automatic Conversion Event or
election subsequent by a holder subsequent to an Optional Conversion Event shall
have occurred, and at such time the rights of the holder of such share or shares
of Series A Preferred Stock shall cease (with respect to the shares of Series A
Preferred Stock), and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of the shares represented thereby.

        3.4     Fractional Shares; Dividends; Partial Conversion.

                (a)     No fractional shares shall be issued upon conversion of
the Series A Preferred Stock into Common Stock.

                (b)     Upon conversion of any shares of Series A Preferred
Stock, the holder of the shares of Series A Preferred Stock so converted shall
be entitled to receive any accrued but unpaid cumulative dividends with respect
to such shares of Series A Preferred Stock, provided that the record date for
such dividends shall have been on or before the date such shares shall have been
converted. No payment or adjustment shall be made on account of dividends
declared and payable to holders of Common Stock of record on a date prior to the
date of conversion.

        3.5     Stock Dividends. If the Corporation declares a dividend or makes
any other distribution upon any stock of the Corporation payable in Common
Stock, Options or Convertible Securities, such dividend or distribution shall be
deemed to have been issued or sold without consideration.

        3.6     Subdivision or Combination of Common Stock. If the Corporation
at any time subdivides its outstanding shares of Common Stock into a greater
number of shares or declares or pays a dividend on its outstanding shares of
Common Stock payable in shares of Common Stock, the Conversion Ratio in effect
immediately prior to such subdivision shall be proportionately reduced, and
conversely, in case the outstanding shares of Common Stock of the Corporation
are combined into a smaller number of shares, the Conversion Ratio in effect
immediately prior to such combination shall be proportionately increased.

<PAGE>   5

        3.7     Record Date. If the Corporation takes a record of the holders of
its Common Stock for the purpose of entitling them (i) to receive a dividend or
other distribution payable in Common Stock, any rights to subscribe for or to
purchase, or any options for the purchase of Common Stock or any stock or
securities convertible or exchangeable for Common Stock (such rights or options
being defined herein as "Options", and such convertible or exchangeable stock or
securities being herein defined as "Convertible Securities") or (ii) to
subscribe for or purchase Common Stock, Options or Convertible Securities, then
such record date shall be deemed to be the date of the issue or sale of the
shares of Common Stock deemed to have been issued or sold upon the declaration
of such dividend or the making of such other distribution or the date of the
granting of such right of subscription or purchase, as the case may be.

        3.8     Issuance of Common Stock Upon Conversion Excepted. Anything
herein to the contrary notwithstanding, the Corporation shall not make any
adjustment of the Conversion Ratio upon the issuance of shares of Common Stock
upon conversion of Series A Preferred Stock.

        3.9     Reorganization or Reclassification. Except for Liquidation
Events (which shall be governed by Paragraph 2 above), if any capital
reorganization or reclassification of the capital stock of the Corporation is
effected in such a way (including, without limitation, by way of consolidation
or merger) that holders of Common Stock shall be entitled to receive stock,
securities or assets with respect to or in exchange for Common Stock, then, as a
condition of such reorganization or reclassification, lawful and adequate
provision (in form and substance satisfactory to the holders of at least a
majority of the outstanding shares of Series A Preferred Stock) must be made
whereby each holder of a share or shares of Series A Preferred Stock shall
thereafter have the right to receive, upon the basis and upon the terms and
conditions specified herein and in lieu of the shares of Common Stock of the
Corporation immediately theretofore receivable upon the conversion of such share
or shares of the Series A Preferred Stock, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange for a number
of outstanding shares of such Common Stock equal to the number of shares of such
stock immediately theretofore so receivable had such reorganization or
reclassification not taken place, and in any such case appropriate provision
shall be made with respect to the rights and interests of such holder to the end
that the provisions hereof (including without limitation provisions for
adjustments of the Conversion Ratio) shall thereafter be applicable, as nearly
as may be, in relation to any shares of stock, securities or assets thereafter
deliverable upon the exercise of such conversion rights. In the event of a
merger or consolidation of the Corporation as a result of which a greater or
lesser number of shares of common stock of the surviving corporation are
issuable to holders of Common Stock of the Corporation outstanding immediately
prior to such merger or consolidation, the Conversion Ratio in effect
immediately prior to such merger or consolidation shall be adjusted in the same
manner as though there were a subdivision or combination of the outstanding
shares of Common Stock of the Corporation. The Corporation will not effect any
such consolidation or merger, or any sale of all or substantially all its assets
and properties, unless prior to consummation thereof the successor corporation
(if other than the Corporation) resulting from such consolidation or merger or
the corporation purchasing such assets shall assume by written instrument (in
form reasonably

<PAGE>   6

satisfactory to the holders of at least a majority of the shares of Series A
Preferred Stock at the time outstanding) executed and mailed or delivered to
each holder of shares of Series A Preferred Stock at the last address of such
holder appearing on the books of the Corporation, the obligation to deliver to
such holder such shares of stock, securities or assets as, in accordance with
the foregoing provisions, such holder may be entitled to receive.

        3.10    Notice of Adjustment. Upon any adjustment of the Conversion
Ratio, then and in each such case the Corporation must give written notice
thereof, by first class mail, postage prepaid, addressed to each holder of
shares of Series A Preferred Stock at the address of such holder as shown on the
books of the Corporation, which notice shall state the Conversion Ratio
resulting from such adjustment, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.

        3.11    Other Notices. If at any time:

                (a)     the Corporation declares any dividend upon its Common
Stock payable in cash or stock or makes any other distribution to the holders of
the Common Stock;

                (b)     the Corporation offers for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any class or other
rights;

                (c)     there is any capital reorganization or reclassification
of the capital stock of the Corporation, or a consolidation or merger of the
Corporation with, or a sale of all or substantially all its assets to, another
corporation;

                (d)     there is a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation; or

                (e)     a Liquidation Event;

then the Corporation shall give, by first class mail, postage prepaid, addressed
to each holder of any shares of Series A Preferred Stock at the address of such
holder as shown on the books of the Corporation, (a) at least ten (10) days'
prior written notice of the date on which the books of the Corporation shall
close or a record shall be taken for such dividend, distribution or subscription
rights or for determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, and (b) in the case of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, at least
ten (10) days' prior written notice of the date when the same shall take place.
Such notice in accordance with the foregoing clause (a) shall also specify, in
the case of any such dividend, distribution or subscription rights, the date on
which the holders of Common Stock shall be entitled thereto, and such notice in
accordance with the foregoing clause (b) shall also specify the date on which
the holders of Common Stock shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, as the case may be.

<PAGE>   7

        3.12    Stock to be Reserved. The Corporation must at all times reserve
and keep available out of its authorized but unissued Common Stock, solely for
the purpose of issuance upon the conversion of the Series A Preferred Stock as
herein provided, such number of shares of Common Stock as shall then be issuable
upon the conversion of all outstanding shares of Series A Preferred Stock. All
shares of Common Stock which shall be so issued shall be duly and validly issued
and fully paid and nonassessable and free from all taxes, liens and charges
arising out of or by reason of the issue thereof. The Corporation will take all
such action within its control as may be necessary on its part to assure that
all such shares of Common Stock may be so issued without violation of any
applicable law or regulation, or of any requirement of any national securities
exchange upon which the Common Stock of the Corporation may be listed. The
Corporation will not take any action which results in any adjustment of the
Conversion Ratio if after such action the total number of shares of Common Stock
issued and outstanding and thereafter issuable upon exercise of all options and
conversion of Convertible Securities, including upon conversion of the Series A
Preferred Stock, would exceed the total number of shares of Common Stock then
authorized by the Corporation's Certificate of Incorporation. If at any time the
number of authorized but unissued shares of Common Stock are insufficient to
effect the conversion of all of the then outstanding shares of Series A
Preferred Stock, the Corporation shall take such corporate actions as may be
necessary to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purposes.

        3.13    No Reissuance of Series A Preferred Stock. Shares of Series A
Preferred Stock that are converted into shares of Common Stock as provided
herein shall not be reissued.

        3.14    Issue Tax. The issuance of certificates for shares of Common
Stock upon conversion of the Series A Preferred Stock shall be made without
charge to the holders thereof for any issuance tax in respect thereof, provided
that the Corporation shall not be required to pay any tax which may be payable
in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than that of the holder of the Series A Preferred
Stock which is being converted.

        3.15    Closing of Books. The Corporation will at no time close its
transfer books against the transfer of any Series A Preferred Stock or of any
shares of Common Stock issued or issuable upon the conversion of any shares of
Series A Preferred Stock in any manner which interferes with the timely
conversion of such Series A Preferred Stock.

        3.16    Definition of Common Stock. As used in this Paragraph 3, the
term "Common Stock" means and includes the Corporation's authorized Common Stock
as constituted on the date of filing of this Certificate of Designation and
shall also include any capital stock of any class of the Corporation thereafter
authorized that shall not be limited to a fixed sum in respect of the rights of
the holders thereof to participate in dividends or in the distribution of assets
upon the voluntary or involuntary liquidation, dissolution or winding up of the
Corporation.

<PAGE>   8

4.      Voting. Except as otherwise provided by law and herein, the holders of
Series A Preferred Stock shall vote together with the holders of Common Stock on
all matters to be voted on by the shareholders of the Corporation, and each
holder of Series A Preferred Stock shall be entitled to one vote for each share
of Common Stock that would be issuable to such holder upon the conversion of all
the shares of Series A Preferred Stock held by such holder on the record date
for the determination of shareholders entitled to vote. The holder of each share
of Series A Preferred shall be entitled, notwithstanding any provision hereof,
to notice of any shareholders' meeting, and shall be entitled to vote, together
with holders of Common Stock, with respect to any question upon which holders of
Common Stock have the right to vote. Fractional votes shall not, however, be
permitted and any fractional voting rights available on an as-converted basis
shall be rounded to the nearest whole number (with one-half being rounded
upward).

5.      Restrictions. (a) Subject to Subsection (b), at any time when shares of
Series A Preferred Stock are outstanding, and in addition to any other vote of
shareholders required by law or by the Corporation's Certificate of
Incorporation, without the prior consent of the holders of at least fifty
percent (50%) of the outstanding Series A Preferred Stock, given in person or by
proxy, either in writing or at a special meeting called for that purpose, at
which meeting the holders of the shares of such Series A Preferred Stock shall
vote together as a single class, the Corporation shall not:

        (i) In any manner issue or grant (whether directly or by assumption in a
        merger or otherwise) any rights to subscribe for or to purchase
        Preferred Stock, Common Stock, Options or Convertible Securities;
        provided, however, that the Corporation may (A) issue Options or
        Convertible Securities to employees of the Corporation that are
        convertible into an aggregate amount of up to 7,000,000 shares of Common
        Stock; and (B) may issue and sell an unspecified number of shares of
        Common Stock pursuant to that certain Securities Purchase Agreement with
        San Diego Asset Management, Inc., dated as of July 16, 2001;, and
        provided further, in no event shall the Corporation issue any such
        Preferred Stock, Common Stock, Option, Convertible Securities or other
        securities which would adversely affect the preferences, rights,
        privileges or powers of, or the restriction provided for the benefit of,
        the Series A Preferred Stock;

        (ii) Amend, modify or repeal any provisions of, or add any provision to,
        the Corporation's Articles of Incorporation, Bylaws or this Certificate
        of Designation if such action would adversely affect the preferences,
        rights, privileges or powers of, or the restrictions provided for the
        benefit of, the Series A Preferred Stock;

        (iii) Reclassify any Preferred or Common Stock into a class or series of
        capital stock having any preference or priority as to dividends or
        assets superior to or on a parity with any such preference or priority
        of the Series A Preferred Stock;

        (iv) Purchase or set aside any funds for the purchase of, or pay any
        dividend or make any distribution on, any shares of stock other than
        Series A Preferred Stock, except for the purchase of shares of Common
        Stock from former employees of the Corporation, if each such purchase is
        made pursuant to contractual rights held by the Corporation relating to

<PAGE>   9

        termination of employment of such former employee and the purchase price
        does not exceed the original issue price paid by such former employee of
        the Corporation for such shares;

        (b)     The provisions and restrictions set forth in subsection (a)
shall terminate at such time as there are fewer than 250,000 shares of Preferred
Stock outstanding.

6.      Redemption. Except as provided in this Section 6, no holder of the
Series A Preferred Stock shall have the right to cause the Corporation to redeem
any shares of Series A Preferred Stock. If by February 28, 2003, (i) an
Automatic Conversion Event has not occurred, and (ii) the shares of Common Stock
into which the Series A Preferred Stock are convertible are not included in a
registration statement that has been declared effective by the Securities and
Exchange Commission to permit resale of such shares of Common Stock, then each
holder of the Series A Preferred Stock shall have the right and option by
delivery of written notice to the Corporation ("Notice of Redemption") to
require the Corporation to redeem all or part of the shares of Series A
Preferred Stock owned by such holder out of funds legally available therefor for
the Redemption Price. The Redemption Price means an amount of money (the
"Redemption Amount") equal to the product of (A) the quotient of (i) the number
of shares of Series A Preferred Stock covered by the Notice of Redemption
divided by (ii) the total of all shares of Series A Preferred Stock then
outstanding ("Redemption Percentage") multiplied by (B) $90,000,000. Upon the
closing of and in addition to any such redemption, a number of unexercised
warrants that were issued concurrently with the issuance of the Series A
Preferred Stock (the "Warrants") held by such holder shall be automatically
canceled for no additional consideration. The number of unexercised Warrants to
be canceled shall be determined by multiplying the Redemption Percentage for
such holder by 20,000,000, as such number may be adjusted from time to time
pursuant to the Warrants.

        No share of the Corporation's capital stock shall be entitled to any
dividends, if any portion of the Redemption Amount remains unpaid. Any Series A
Preferred Stock redeemed pursuant to this Section will be canceled and will not
under any circumstances be reissued, sold or transferred and the Corporation may
from time to time take such appropriate action as may be necessary to reduce the
authorized Series A Preferred Stock accordingly.

        7.      No Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Certificate of Designation and in the taking of all such action as may be
necessary or appropriate in order to protect and effectuate the conversion
rights of the holders of the Series A Preferred.


                            [SIGNATURE PAGE FOLLOWS]

<PAGE>   10

        IN WITNESS WHEREOF, John Andrews, as President and Secretary, acting for
and on behalf of the Corporation, has hereunto set his hand this ___ day of
August, 2001.



                                               By:______________________________
                                               Name:  John Andrews
                                               Title: President and Secretary of
                                                      e-MedSoft.com


                               [SIGNATURE PAGE TO
                    CERTIFICATE OF DESIGNATION OF SERIES AND
        DETERMINATION OF RIGHTS AND PREFERENCES FOR SERIES A CONVERTIBLE
                       PREFERRED STOCK OF E-MEDSOFT.COM]


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