Exhibit 4.5


 


ARTICLES OF AMENDMENT

TO THE ARTICLES OF INCORPORATION

OF

ANALYTICAL SURVEYS, INC.


 


Pursuant
to the provisions of the Colorado Business Corporation Act, the undersigned
corporation adopts the following Articles of Amendment to its Articles of Incorporation:


 


FIRST:
The name of the Corporation is: ANALYTICAL SURVEYS, INC.


 


SECOND:
The following Amendment was duly adopted by unanimous written consent of the
Board of Directors of Analytical Surveys, Inc. (the “Company”) in lieu of
a meeting on February 8, 2006, pursuant to Section 7-106-102 of the
Colorado Business Corporation Act and as expressly authorized under Article IV
of the Articles of Incorporation of the Company, as amended (the “Articles”):


 


ARTICLE IV,
stating the authorized number of shares is hereby amended by deleting in its
entirety the text following paragraph (g) and inserting in lieu thereof
the following:


 


A.                                   One
series of Preferred Stock of the company, no par value, will be issued, and the
designation and amount, preferences, limitations and relative rights of this
series, are as follows:


 


Series A Convertible Preferred Stock


 


1.                                       Designation and Amount.  There
shall be a series of Preferred Stock that shall be designated as “Series A
Convertible Preferred Stock,” and the number of shares constituting such series
shall be 850,000.  Such number of shares
may be increased or decreased by resolution of the Board of Directors;
provided, however, that no decrease shall reduce the number of shares of the Series A
Convertible Preferred Stock to less than the number of shares then issued and
outstanding.


 


2.                                       Dividends
and Distribution.


 


(A)                              Subject
to the prior and superior rights of the holders of any class or series of stock
of the Corporation ranking prior and superior to the shares of the Series A
Convertible Preferred Stock with respect to dividends, the holders of shares of
the Series A Convertible Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, cumulative dividends, payable in cash on the 15th
day of May, August, November and February, in each year (each such date
being referred to herein as a “Quarterly Dividend Payment Date”),
commencing on the first Quarterly Dividend Payment Date after the last issuance
of a share of the Series A Convertible Preferred Stock.  The dividend shall be paid at the annual rate
of seven percent (7%) of the purchase price of each share of the Series A
Convertible Preferred Stock, which purchase price per share for purposes of
this Section 2 shall be deemed to be $1.00, subject to any adjustment for
any stock dividends, combinations, recapitalizations, splits or otherwise with
respect to such shares).  Such dividends


 


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shall accrue on each
share from the date of purchase of each such share from the Corporation, and
shall accrue from day to day, whether earned or declared.  No dividends may be paid with respect to the
Common Stock until all dividends declared or accrued on all outstanding shares
of the Series A Convertible Preferred Stock pursuant to this Section 2
have been set apart and paid.  The Board
of Directors may fix a record date for the determination of holders of shares
of the Series A Convertible Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be no more
than 15 days prior to the date fixed for the payment thereof.


 


(B)                                Notwithstanding
the foregoing, for a period of fifteen (15) days during which trading is
conducted on NASDAQ after each Quarterly Dividend Payment Date, provided that
such date occurs during the effectiveness of a registration statement to be
filed by the Corporation with the Securities and Exchange Commission (“SEC”)
under the Securities Act of 1933 (the “1933 Act”) with respect to the
shares of the Corporation’s no par value Common Stock (“Common Stock”) into
which the shares of the Series A Convertible Preferred Stock are
convertible (as provided herein)(the “Registration Statement”), each
holder of shares of Series A Convertible Preferred Stock shall have the
option, exercised by means of the delivery of a written directive which must be
received by the Corporation during such fifteen (15) day period, to direct that
such dividend be paid in kind by means of fully paid and non-assessable shares
of the Common Stock registered under the Registration Statement.  The number of shares of the Common Stock to
which such holder would be entitled to receive shall be determined by dividing
the amount of the dividend by the Fixed Conversion Price (as defined herein),
with no fractional shares of the Common Stock to be issued as aforesaid.  In no event shall the number of shares of the
Common Stock issuable pursuant to this Section 2(B) and as liquidated
damages, if any, payable in connection with the Registration Statement, when
added to the number of shares of the Common Stock issuable upon conversion of
the shares of Series A Convertible Preferred Stock, exceed 19.9% of the
total number of shares of Common Stock outstanding on the effective date of the
earliest issuance of shares of Series A Convertible Preferred Stock (the “Final
Closing Date”), unless such excess is then duly approved by an affirmative
vote of the shareholders of the Corporation.


 


3.                                       Redemption.  Provided
that the Corporation is not then in default of any of its obligations
hereunder, the Corporation may redeem any and all shares of Series A
Convertible Preferred Stock at any time during the effectiveness of the Registration
Statement, but not later than the second anniversary of the issuance of any
such shares, at the redemption price payable in cash equal to $1.15 per share plus
accrued dividends.  Prior to effecting
such redemption, the Corporation shall give the holder written notice of the
proposed redemption (the “Notice of Redemption”).  For a period of fifteen (15) days during
which trading is conducted on NASDAQ after receipt by the holder of the Notice
of Redemption, such holder shall have the option, exercised by means of the
delivery of a written directive which must be received by the Corporation
within such fifteen (15) day period, to direct that the applicable redemption
proceeds be paid in kind by means of fully paid and non-assessable shares of
the Common Stock registered under the Registration Statement.  The number of shares of the Common Stock to
which such holder would be entitled to receive shall be determined by dividing
the applicable redemption proceeds by the Fixed Conversion Price, with no fractional
shares of the Common Stock to be issued as aforesaid.


 


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4.                                       No Voting Rights.  The
holders of shares of Series A Convertible Preferred Stock shall not have
voting rights:


 


5.                                       Certain Restrictions.


 


(A)                              Whenever
quarterly dividends or other dividends or distributions payable on the Series A
Convertible Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions,
whether or not declared, on shares of the Series A Convertible Preferred
Stock outstanding shall have been paid in full, the Corporation shall not:


 


(a)                                  declare
or pay dividends on, make any other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the Series A
Convertible Preferred Stock.


 


(b)                                 declare
or pay dividends on or make any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Convertible Preferred Stock, except dividends
paid ratably on the Series A Convertible Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then entitled; or


 


(c)                                  purchase
or otherwise acquire for consideration any shares of the Series A
Convertible Preferred Stock, or any shares of stock ranking on a parity with
the Series A Convertible Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the Board of
Directors) to all holders of the Series A Convertible Preferred Stock, or
to such holders and holders of any such shares ranking on a parity therewith,
upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or classes.


 


(B)                                The
Corporation shall not, before the expiration of the six-month period commencing
upon the effectiveness of the Registration Statement, issue or sell any shares
of the Common Stock, any securities convertible into, or any warrants or other
rights to subscribe for or to purchase or any options for the purchase of the
Common Stock or any such securities (other than (i) shares of Common Stock
or options to purchase such shares issued to employees, consultants, officers
or directors in accordance with stock plans approved by the Board of Directors,
(ii) shares of Common Stock issuable under options or warrants that are
outstanding as of the Final Closing Date or (iii) shares of Common Stock
issued pursuant to a stock dividend, split or other similar transaction) (“Additional
Common Stock”) at an effective price per share of Common Stock which is
less than the Fixed Conversion Price, without the written approval of the
holders of at least seventy percent (70%) of the Preferred Shares then issued
and outstanding.  Any shares of
Additional Common Stock issued without such approval shall be null and void.


 


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6.                                       Conversion.  The holders of the Series A Convertible
Preferred Stock shall have conversion rights as follows:


 


(A)                              Each
share of the Series A Convertible Preferred Stock shall be convertible, at
the option of the holder thereof, at any time after the date of issuance of
such share, into fully paid and nonassessable shares of Common Stock at the
rate (the “Fixed Conversion Price”) determined as follows:


 


For
each share of Series A Convertible Preferred Stock the holder shall be
entitled to receive that number of shares of the Common Stock equal to $1 divided
by the lesser of (i) $1.2835 or (ii) 90% of the average of the
closing bid prices of the Common Stock on NASDAQ for the five trading days
immediately preceeding the closing date; such Closing Date fixed pursuant to the
Subscription Agreement executed by the original holder of such share and the
Corporation.


 


No
fractional shares of the Common Stock shall be issued.


 


(B)                                Each share of the Series A Convertible Preferred Stock shall
automatically be converted into fully paid and nonassessable shares of the
Common Stock at the Fixed Conversion Price at earlier of (i) the second
anniversary of its issuance or (ii) on the closing date of any
consolidation, merger, combination or other transaction in which the
outstanding shares of the Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other proprety.


 


7.                                       Mechanics of Conversion.


 


(A)                              Each
share of the Series A Convertible Preferred Stock may be converted at any
time and from time to time, by delivering to the offices of the Corporation, or
any transfer agent for the Common Stock, the certificates therefor, duly
endorsed.


 


(B)                                Certificates
for shares of the Common Stock so purchased hereunder shall be delivered to the
holder within three (3) trading days after the date on which the
certificate or certificates for the Series A Convertible Preferred Stock
shall have been delivered as aforesaid. 
In lieu of delivering physical certificates representing the shares of
the Common Stock, provided that the Corporation’s transfer agent is
participating in the Depository Trust Company (“DTC”) Fast Automated Securities
Transfer (“FAST”) program, upon request of the holder, the Corporation shall
use its best efforts to cause its transfer agent to electronically transmit
such shares of the Common Stock by crediting the account of the holder’s prime
broker with DTC through its Deposit Withdrawal Agent Commission (“DWAC”)
system.


 


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(C)                                The
Corporation shall at all times reserve and keep available out of its authorized
but unissued shares of the Common Stock, solely for the purpose of effecting
the conversion of the shares of the Series A Convertible Preferred Stock,
such number of its shares of the Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of the Series A
Convertible Preferred Stock, and if at any time the number of authorized but
unissued shares of the Common Stock shall not be sufficient to effect the
conversion of all then outstanding shares of the Series A Convertible
Preferred Stock, in addition to such other remedies as shall be available to
the holders of the Series A Convertible Preferred Stock, the Corporation
will take such corporate action as may, in the opinion of its counsel be
necessary to increase its authorized but unissued shares of the Common Stock to
such number of shares as shall be sufficient for such purposes.


 


8.                                       Reacquired Shares.  Any
shares of the Series A Convertible Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever shall be retired promptly
after the acquisition thereof.  All such
shares shall upon their retirement become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject
to any conditions and restrictions on issuance set forth herein.


 


9.                                       Liquidation, Dissolution or Winding Up.


 


(A)                              Upon
any liquidation, dissolution or winding up of the Corporation, voluntary or
otherwise, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Convertible Preferred Stock unless, prior
thereto, the holders of shares of the Series A Convertible Preferred Stock
shall have received an amount per share (the “Series A Liquidation
Preference”) equal to $1.00 plus an amount equal to accrued and unpaid
dividends and distributions thereon whether or not declared, to the date of
such payment.


 


(B)                                In
the event, however, that there are not sufficient assets available to permit
payment in full of the Series A Liquidation Preference and the liquidation
preferences of all other classes and series of stock of the Corporation, if
any, that rank on a parity with the Series A Convertible Preferred Stock
in respect thereof, then the assets available for such distribution shall be
distributed ratably to the holders of the Series A Convertible Preferred
Stock and the holders of such parity shares in proportion to their respective
liquidation preferences.


 


(C)                                Neither
the merger or consolidation of the Corporation into or with another corporation
nor the merger or consolidation of any other corporation into or with the
Corporation shall be deemed to be a liquidation, dissolution or winding up of
the Corporation within the meaning of this Section 7.


 


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10.                                 Adjustment to Fixed Conversion Price.  If prior to the conversion of all of the
shares of the Series A Convertible Preferred Stock, the number of
outstanding shares of Common Stock of the Company is increased by a stock
split, stock dividend, or other similar event, the Fixed Conversion Price shall
be proportionately increased, or if the number of outstanding shares of Common
Stock is decreased by a combination or reclassification of shares, or other
similar event, the Fixed Conversion Price shall be proportionately decreased.


 


11.                                 Ranking. 
The Series A Convertible Preferred Stock shall rank junior to all
other series of the Preferred Stock as to the payment of dividends, and as to
the distribution of assets upon liquidation, dissolution or winding up, unless
the terms of any such series shall provide otherwise, and shall rank senior to
the Common Stock as to such matters.


 


12.                                 Amendment, etc.  At
any time that any shares of the Series A Convertible Preferred Stock are
outstanding, the Articles of Incorporation of the Corporation shall not be
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Convertible Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of
two-thirds of the outstanding shares of the Series A Convertible Preferred
Stock, voting separately as a class, and the Corporation will not, through any
reorganization, transfer of assets, consolidation, merger, share exchange,
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.


 


IN
WITNESS WHEREOF, the undersigned has executed this Certificate this 8th
day of February, 2006.


 


 


	
   

  	
  ANALYTICAL
  SURVEYS, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ LORI A. JONES

  	
   

  
	
   

  	
  Name: Lori Jones

  	
   

  	
   

  
	
   

  	
  Title: Chief
  Executive Officer

  	
   

  
					



 


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