Exhibit  4.6


 


THIS INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (this “Instrument”),
dated as of September 18, 2008 (“Effective Date”), is by and among NovaMed, Inc.,
a corporation duly organized and existing under the laws of the State of Delaware
(the “Company”), U.S.  Bank National Association, a
national banking association duly organized and existing under the laws of the
United States (the “Successor Trustee”), and LaSalle Bank National Association,
a national banking association duly organized and existing under the laws of
the United States, as Trustee (the “Resigning Trustee”). Capitalized terms not
otherwise defined herein shall have the same meaning ascribed to such terms in
the Indentures (as defined below) as applicable.


 


RECITALS


 


WHEREAS, pursuant to an indenture dated as of June 27,
2007 as supplemented (the “Indenture”), by and between the Company and the
Resigning Trustee, the Company issued the aggregate principal amount at
maturity of $75,000,000 of its 1% Convertible Senior Subordinated  Notes due 2012 (the “Notes”);


 


WHEREAS, the Company appointed the Resigning Trustee
as the Paying Agent, Registrar and Conversion Agent under the Indenture;


 


WHEREAS, there is presently issued and outstanding
$75,000,000 in aggregate principal amount of the Notes;


 


WHEREAS, Section 7.10 of the Indenture provides
that the Trustee may at any time resign by giving written notice of such
resignation to the Company and the Company shall promptly appoint a successor
Trustee;


 


WHEREAS, the Resigning Trustee desires to resign as
Trustee, Paying Agent, Registrar and Conversion Agent and the Company desires
to appoint the Successor Trustee as Trustee, Paying Agent, Registrar and
Conversion Agent to succeed the Resigning Trustee under the Indentures; and


 


WHEREAS, the Successor Trustee is willing to accept
the appointment as Trustee, Paying Agent, Registrar and Conversion Agent under
7.11 of the Indenture;


 


NOW; THEREFORE, in consideration of the covenants
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:


 


1. Acceptance of Resignation of Resigning Trustee; Appointment
of Successor Trustee. Pursuant to Section 7.10 of the
Indenture, the Resigning Trustee hereby resigns as Trustee under the Indenture.
The Resigning Trustee also hereby resigns as Paying Agent, Registrar and
Conversion Agent under the Indenture. The Company accepts the resignation of
the Resigning Trustee as Trustee, Paying Agent, Registrar and Conversion Agent
and hereby appoints the Successor Trustee as Trustee, Paying Agent, Registrar
and Conversion Agent under the Indenture.


 


1

















 


2. Company Representations and Warranties. The
Company represents and warrants to the Successor Trustee that:


 


a.             It
is duly organized and validly existing;


 


b.             The
execution and delivery of this Instrument have been duly authorized by the
Company;


 


c.             [reserved]


 


d.             It
has no knowledge of the existence of any Event of Default which may have
occurred at any time prior to the date of this Instrument, or any event which,
after notice or lapse of time or both, would become an Event of Default under
any of the Indentures;


 


e.             The
Indenture is in full force and effect;


 


f.              There
is no action, suit or proceeding pending or, to the best of the Company’s
knowledge, threatened against the Company before any court or any government
authority arising out of any action or omission by the Company under the
Indentures; and


 


g.             This
Instrument has been duly authorized, executed and delivered on behalf of the
Company and constitutes its  legal, valid and binding
obligation.


 


3.             Resigning Trustee Representations
and Warranties.
The Resigning Trustee hereby represents and warrants to the Successor Trustee
that:


 


a.             No
covenant or condition contained in the Indenture has been waived by the
Resigning Trustee or, to the best of the knowledge of the Responsible Officer
of the Resigning Trustee, by the Holders of the percentage in aggregate
principal amount of the Notes required by each of the Indentures to effect any
such waiver;


 


b.             There
is no action, suit or proceeding pending or, to the best of the knowledge of
the Responsible Officer of the Resigning Trustee, threatened against the
Resigning Trustee before any court or governmental authority arising out of any
action or omission by the Resigning Trustee as Trustee, Paying Agent and
Registrar under any of the Indentures;


 


c.             Resigning
Trustee has delivered or will deliver to Successor Trustee, as of or immediately
after the Effective Date hereof, all documents in its possession relating to
the trusts created under the Indentures, including all of the documents listed
in Exhibit B hereto, and such other documents reasonably obtainable
as mutually agreed upon;


 


d.             The
execution and delivery of this Instrument has been duly authorized by the
Resigning Trustee, and this Instrument constitutes the Resigning Trustee’s
legal, valid, binding and enforceable obligation; and;


 


2

















 


e.             The
Resigning Trustee certifies that: 
$75,000,000 in aggregate principal amount of the Notes is outstanding
and interest has been paid through June 15, 2008.


 


4.             Successor Trustee Representation and
Warranty. The Successor Trustee represents and warrants to
the Resigning Trustee and the Company that it is eligible to serve as Trustee,
Paying Agent, Registrar and Conversion Agent under the Indenture and the Trust
Indenture Act of 1939.


 


5.             Acceptance by Successor Trustee.
Pursuant to Section 7.11 of the Indenture, the Successor Trustee hereby
accepts its appointment as Trustee under the Indenture and shall hereby be
vested with all the rights, powers, trusts and duties of the Trustee under each
of the Indentures and with respect to all property and money held or to be held
under each of the Indentures, with like effect as if the Successor Trustee was
originally named as Trustee under each of the Indentures. The Successor Trustee
also hereby accepts its appointment as Registrar, Paying Agent and Conversion
Agent. The Successor Trustee will perform said rights, powers and duties upon
the terms and conditions set forth in the Indenture. Promptly after the
execution and delivery of this Instrument, the Successor Trustee shall cause a
notice, a form of which is annexed hereto as Exhibit A, to be sent
to each Holder of the Notes.


 


6.             Assignment etc. by Resigning
Trustee. Effective on the Effective Date, the Resigning
Trustee hereby confirms, assigns, transfers, delivers and conveys to the
Successor Trustee, as Trustee under each of the Indentures, upon the trusts
expressed in the Indentures, all rights, powers, trusts, privileges, duties and
obligations which the Resigning Trustee now holds under and by virtue of  the Indenture, and effective as of such date
does hereby pay over to the Successor Trustee any and all property and moneys
held by the Resigning Trustee under and by virtue of each of the Indentures.


 


7.             Additional
Documentation. The Resigning Trustee and the Company, for
the purposes of more fully and certainly vesting in and confirming to the
Successor Trustee the rights, powers, trusts, privileges, duties and
obligations hereby assigned, transferred, delivered and conveyed, agree, upon
reasonable request of the Successor Trustee, to execute, acknowledge and
deliver such further instruments of conveyance and further assurance and to do
such other things as may reasonably be required by the 

Successor Trustee.


 


8.             Choice
of Laws. This Instrument shall be governed by the same laws
that govern each of the Indentures.


 


9.             Counterparts.
This Instrument may be executed in any number of counterparts, each of which,
when so executed and delivered, shall be an original, but all counterparts
shall constitute but one Instrument.


 


10.           Survival
of Company’s Obligations to Resigning Trustee. 
Notwithstanding the resignation of the Resigning Trustee as Trustee
under each of the Indentures, each of the Company and the Guarantor shall
remain obligated under the Indenture to compensate, reimburse and indemnify the
Resigning Trustee in connection with its trusteeship as provided in Indenture,
and nothing contained in this Instrument shall in any way abrogate the
obligations of the Company to the Resigning Trustee under the 


 


3

















 


Indenture or any lien created in favor of the Resigning Trustee
thereunder. The Company also acknowledges and reaffirms its obligation to the
Successor Trustee set forth in Section 7.06 of the Indenture.


 


11.           Notices.
All notices, whether faxed or mailed, will be deemed received when sent
pursuant to the following instructions:


 


TO
THE SUCCESSOR TRUSTEE:


 


US Bank National Association


60 Livingston Avenue.


EP-MN-WS3C


St. Paul, MN 55107-2292


Attn: Rick Prokosch


Phone: 651-495-3918


Fax: 651-4195-8097


 


TO
THE RESIGNING TRUSTEE:


 


LaSalle Bank National association.


135 South LaSalle Street, Suite 1625


Chicago, IL 60603


Phone: 312-904-2371


Fax: 312-904-4018


 


TO
THE COMPANY:


 


NovaMed, Inc.


Attn: Chief Financial Officer.


980 North Michigan Avenue


Chicago, IL 60611


Phone: 312-780-3234


Fax: 312-664-4250


 


13.           Effectiveness.
This Instrument and the resignation, appointment and acceptance effected hereby
shall be effective as of the close of business on the Effective Date; provided that the resignation of the Resigning
Trustee as Paying Agent and the appointment of the Successor Trustee as Paying
Agent under each of the Indentures shall be effective 10 days after the date
first above written.


 


4

















 


IN WITNESS WHEREOF, the parties hereto have
executed this Instrument as of the date set forth above.


 


NovaMed, Inc.,
as the Company


 


	
  By

  	
  /s/ Scott T. Macomber

  	
   

  
	
   

  	
       Its: EVP and CFO

  	
   

  



 


U.S. Bank National Association, as the Successor Trustee


 


	
  By

  	
  /s/ Rick Prokosch

  	
   

  
	
   

  	
       Its:
  Vice President

  	
   

  



 


LaSalle Bank National Association, as the Resigning Trustee


 


	
  By

  	
  /s/ Thomas Popovics

  	
   

  
	
   

  	
       Its: Assistant Vice
  President

  	
   

  



 


5

















 


[US
BANK LETTERHEAD]


 


Corporate
Trust Services


60
Livingston Avenue


EP-MN-WS2N


St.
Paul, MN 55107


 


	
   

  	
  Date
  of Notification:            9-8-2008

  
	
   

  	
   

  
	
   

  	
  To:

  	
  The
  Depository Trust Company

  	
   

  
	
   

  	
  Attention:

  	
  FAST
  Implementation

  	
  Angela
  Orlando – (212) 855-5009

  
	
   

  	
   

  	
   

  	
  Dinesh
  Hegde – (813) 470-1578

  
	
   

  	
   

  	
  Reorg.
  Controls

  	
  Tim
  Smith – (212) 855-5235 – (Remarking Capacity)

  
	
   

  	
   

  	
   

  	
  Chris
  Kluender – (516) 277-4508 – (Tender Capacity)

  
	
   

  	
   

  	
  DDA
  Services

  	
  Lorraine
  Bruzzese – (212) 855-2200

  
	
   

  	
   

  	
   

  	
  Cecil
  Mckinnon – (212) 855-4622

  
	
   

  	
   

  	
  Redemptions

  	
  Fred
  Rigsby – (212) 855-2021

  
	
   

  	
   

  	
  Underwriting

  	
  Sharon
  Pope – (212) 855-4479

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  From:     U.S. Bank Original Issuance Department
  (651) 495-7090

  Form to
  be used for:            Business
  Succession/Resignation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Issuer:

  	
  NovaMed, Inc.

  
	
   

  	
  Security
  Description:

  	
  1.0%
  Convertible Senior Subordinated Notes, Due 2012

  
						



 


	
   

  	
  RATE

  	
   

  	
  MATURITY

  	
   

  	
  CUSIP

  	
   

  	
  AMOUNT

  	
   

  
	
   

  	
  1.0%

  	
   

  	
  6/15/2012

  	
   

  	
  66986WAA6

  	
   

  	
  75,000,000

  	
   

  



 


	
   

  	
  Effective
  Date of Transition:

  	
  9-18-2008

  
	
   

  	
  U.S.
  Bank FINS#:

  	
  201327

  
	
   

  	
  U.S.
  Bank Transfer Agent #:

  	
  9968

  



 


	
   

  	
   

  	
  New
  Agent

  	
  Previous
  Agent

  
	
   

  	
  Name

  	
  U.S.
  Bank

  	
  LaSalle
  Bank National Association

  
	
   

  	
  Address

  	
  60
  Livingston Ave

  St. Paul, MN 55107

  	
  135
  South LaSalle Street, Suite 125

  Chicago, IL 60611

  
	
   

  	
  Phone

  	
  651-495-3450

  	
  312-904-9285

  
	
   

  	
  Contact

  	
  Carolyn
  C. Caba

  	
  Rosalyn
  Frasier

  



 


	
   

  	
  Capacities
  being Transitioned:

  	
   

  
	
   

  	
  x
  Transfers/Registrar

  	
  o Remarketing

  
	
   

  	
  x
  Dividend/Interest Distributions

  	
  o Tender

  
	
   

  	
  x Trustee
  (Bonds)

  	
  o Paying Agent
  (Bond Coupons)

  
	
   

  	
  x
  Redemption/Maturity (Bonds)

  	
  o Other:

  
	
   

  	
   

  	
   

  
	
   

  	
  Attachments:
  Yes o    No
  x

  	
   

  
	
   

  	
                Number
  of Pages (including this one): 1

  	
   

  



 


	
  Signature:

  	
  /s/
  Carolyn C. Caba

  	
   

  	
  Title:

  	
  Business
  Operations Analyst

  
	
  Authorized

  	
   

  	
   

  	
   

  	
   

  
	
  Signatory:

  	
  Carolyn
  C. Caba

  	
   

  	
  Telephone:

  	
  (651)
  495-3466

  
	
   

  	
   

  	
   

  
	
   

  	
  x Urgent          x  For Review  
  o  Please Contact          o  Please Recycle          o  Please Reply

  
								



 

















 


EXHIBIT B


 


Documents
to be delivered by Resigning Trustee to successor Trustee as to each of the
Indentures (except where noted):


 


1.                       Copy of
Indenture


 


2.                       File of Closing
Documents


 


3.                       Copy of the
most recent Compliance Certificate delivered pursuant to each of the Indentures


 


4.                       Certified lists
of Noteholders as of the Effective Date, certificate of detail and all “stop
transfers” and the reason for such “stop transfers” (or, alternatively, if
there are a substantial number of registered Noteholders, the computer tape
reflecting the identity of such Noteholders).


 


5.                       Copies of any
official notices sent by the Trustee to all the Noteholders of the Notes
pursuant to the terms of the Indentures during the past twelve months, if any.


 


6.                       Notes debt
service records.


 


7.                       Trust account
statements for one-year period proceeding the date of this Instrument.


 


8.                       All unissued
Note inventory, if any or DTC FAST held global certificates.


 


9.                       [reserved]