Exhibit 4.1


 


DESCRIPTION OF THE REGISTRANT’S SECURITIES


REGISTERED PURSUANT TO SECTION 12 OF THE


SECURITIES EXCHANGE ACT OF 1934


 


Kubient, Inc. has one class of securities registered
under Section 12 of the Securities Exchange Act of 1934, as amended: our common stock, par value $0.00001 per share (“common stock”).


 


Authorized Capital Stock


 


We are currently authorized to issue up to 100,000,000
shares of capital stock consisting of: 95,000,000 shares of common stock, par value $0.00001 per share and 5,000,000 shares of preferred
stock, par value of $0.00001 per share.


 


Common Stock


 


Holders of our common stock are entitled to one
vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. An election of directors
by our stockholders shall be determined by a plurality of the votes cast by the stockholders entitled to vote on the election. Holders
of common stock are entitled to receive proportionately any dividends as may be declared by our board of directors, subject to any preferential
dividend rights of outstanding preferred stock. Our board of directors is not obligated to declare a dividend. It is not anticipated that
dividends will be paid in the foreseeable future.


 


In the event of our liquidation or dissolution,
the holders of common stock are entitled to receive proportionately all assets available for distribution to stockholders after the payment
of all debts and other liabilities and subject to the prior rights of any outstanding preferred stock. Holders of common stock have no
preemptive, subscription, redemption or conversion rights. The rights, preferences and privileges of holders of common stock are subject
to and may be adversely affected by the rights of the holders of shares of any series of preferred stock that we may designate and issue
in the future.


 


Holders of our common stock do not have preemptive
rights to subscribe to additional shares if issued. There is no conversion, redemption, sinking fund or similar provisions regarding the
common stock. All outstanding shares of common stock are fully paid and non-assessable.


 


Preferred Stock


 


Under the terms of our certificate of
incorporation, as amended and restated (the “certificate of incorporation”), our board of directors is authorized to issue shares of preferred stock in one or more
classes or series without stockholder approval. Our board of directors has the discretion to determine the rights, preferences,
privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges and liquidation
preferences, of each series of preferred stock.


 


The purpose of authorizing our board of directors
to issue preferred stock and to determine such preferred stock’s rights and preferences is to eliminate delays associated with a
stockholder vote on specific issuances. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions,
future financings and other corporate purposes, could have the effect of making it more difficult for a third party to acquire, or could
discourage a third party from seeking to acquire, a majority of our outstanding voting stock. Presently, our board of directors has not
authorized the creation or issuance of any shares or series of preferred stock.


 


Authorized but Unissued Shares of Common Stock
and Preferred Stock


 


The authorized but unissued shares of our common
stock and preferred stock are available for future issuance without stockholder approval, subject to any limitations imposed by the listing
standards of The Nasdaq Capital Market. These additional shares may be used for a variety of corporate finance transactions, acquisitions
and employee benefit plans. The existence of authorized but unissued and unreserved common stock and preferred stock could make more difficult
or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.


 






     


     


    

 


Anti-Takeover Matters


 


Bylaw Provisions


 


The Delaware General Corporate Law (“DGCL”)
and our amended and restated bylaws (the “bylaws”) include a number of provisions that may have the effect of delaying, deferring
or discouraging another person from acquiring control of our company and discouraging takeover bids. These provisions may also have the
effect of encouraging persons considering unsolicited tender offers or other unilateral takeover proposals to negotiate with our board
of directors rather than pursue non-negotiated takeover attempts. These provisions include the items described below.


 


No Cumulative Voting


 


The DGCL provides that stockholders are not entitled
to the right to cumulate votes in the election of directors unless our certificate of incorporation provides otherwise. Our bylaws provide
that there shall be no cumulative voting.


 


Written Consent of Stockholders


 


Our bylaws provide that all stockholder actions
are required to be taken by a vote of the stockholders at an annual or special meeting, and that stockholders may take any action by written
consent in lieu of a meeting.


 


Meetings of Stockholders


 


Our bylaws provide that a majority of the members
of our board of directors then in office, the Chairman of the Board, the Chief Executive Officer, the President, or the holders of outstanding
shares of common stock entitled to cast not less than 75% of the votes in a meeting may call special meetings of stockholders and only
those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders. Our
bylaws limit the business that may be conducted at an annual meeting of stockholders to those matters properly brought before the meeting.


 


Advance Notice Requirements


 


Our bylaws establish advance notice procedures
for stockholders seeking to bring business before an annual or special meeting of stockholders or to nominate candidates for election
as directors at our annual meeting of stockholders. These procedures provide that notice of stockholder proposals must be timely given
in writing to our corporate secretary prior to the meeting at which the action is to be taken. Generally, to be timely, notice must be
received at our principal executive offices not less than 120 days prior to the first anniversary date of the annual meeting for the preceding
year. The notice must contain certain information specified in the bylaws.


 


Supermajority Voting


 


Our certificate of incorporation requires approval
by holders of at least 662∕3% of our outstanding capital stock entitled to vote generally in the election of directors, in addition
to any rights of the holders of our outstanding capital stock to vote on such amendment under the DGCL. Our bylaws requires approval by
either a majority of our board of directors or holders of at least 662∕3% of our outstanding capital stock entitled to vote generally
in the election of directors, in addition to any rights of the holders of our outstanding capital stock to vote on such amendment under
the DGCL.


 






     


     


    

 


Blank Check Preferred Stock


 


Our certificate of incorporation provides for
5,000,000 authorized shares of preferred stock. The existence of authorized but unissued shares of preferred stock may enable our board
of directors to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest,
or otherwise. For example, if in the due exercise of its fiduciary obligations, our board of directors were to determine that a takeover
proposal is not in the best interests of us or our stockholders, our board of directors could cause shares of preferred stock to be issued
without stockholder approval in one or more private offerings or other transactions that might dilute the voting or other rights of the
proposed acquirer or insurgent stockholder or stockholder group. In this regard, our certificate of incorporation grants our board of
directors broad power to establish the rights and preferences of authorized and unissued shares of preferred stock. The issuance of shares
of preferred stock could decrease the amount of earnings and assets available for distribution to holders of shares of common stock. The
issuance may also adversely affect the rights and powers, including voting rights, of these holders and may have the effect of delaying,
deterring, or preventing a change in control of us.


 


Delaware General Corporation Law


 


In general, Section 203 prohibits a publicly held
Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a three-year
period following the time that this stockholder becomes an interested stockholder, unless the business combination is approved in a prescribed
manner. A “business combination” includes, among other things, a merger, asset or stock sale, or other transaction resulting
in a financial benefit to the interested stockholder. An “interested stockholder” is a person or entity who, together with
affiliates and associates, owns, or did own within three years prior to the determination of interested stockholder status, 15% or more
of the corporation’s voting stock. Under Section 203, a business combination between a corporation and an interested stockholder
is prohibited unless it satisfies one of the following conditions:


 


• before the stockholder became interested,
our board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested
stockholder;


 


• upon consummation of the transaction which
resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding, shares
owned by persons who are directors and also officers, and employee stock plans, in some instances; or


 


• at or after the time the stockholder became
interested, the business combination was approved by our board of directors and authorized at an annual or special meeting of the stockholders
by the affirmative vote of at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder.


 


Any provision of our certificate of incorporation,
bylaws or Delaware law that has the effect of delaying, preventing or deterring a change in control could limit the opportunity for our
stockholders to receive a premium for their shares of our common stock, and could also affect the price that some investors are willing
to pay for our common stock.


 


Exclusive Forum for Resolution of Disputes


 


Pursuant to our certificate
of incorporation, to the fullest extent permitted by law, unless we consent in writing to the selection of an alternative forum, the Court
of Chancery of the State of Delaware is the sole and exclusive forum for state law claims for (i) any derivative action or proceeding
brought on our behalf, (ii) any action asserting a claim of or based on a breach of a fiduciary duty owed by any of our current or former
directors, officers, or other employees to us or our stockholders, (iii) any action asserting a claim against us arising pursuant to any
provision of the DGCL, our certificate of incorporation, or our bylaws, or (iv) any action asserting a claim governed
by the internal affairs doctrine. For the avoidance of doubt, this forum selection clause will not apply to suits brought to enforce any
liability or duty created by the Securities Act, the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction.


 






     


     


    

 


We recognize that the forum selection clause may
impose additional litigation costs on stockholders who assert the provision is not enforceable and may impose more general additional
litigation costs in pursuing any such claims. Additionally, the forum selection clause in our bylaws may limit our stockholders’
ability to obtain a favorable judicial forum for disputes with us. The Court of Chancery of the State of Delaware may also reach different
judgments or results than would other courts, including courts where a stockholder considering an action may be located or would otherwise
choose to bring the action, and such judgments may be more or less favorable to us than our stockholders.


 


Limitations of Director Liability and Indemnification
of Directors and Officers


 


As permitted by the DGCL, provisions in our certificate
of incorporation and bylaws limit or eliminate the personal liability of our directors. Consequently, directors will not be personally
liable to us or our stockholders for monetary damages or breach of fiduciary duty as a director, except for liability for:


 


• any breach of the director’s duty
of loyalty to us or our stockholders;


 


• any act or omission not in good faith or
that involves intentional misconduct or a knowing violation of law;


 


• any unlawful payments related to dividends
or unlawful stock repurchases, redemptions or other distributions; or


 


• any transaction from which the director
derived an improper personal benefit.


 


These limitations of liability do not alter director
liability under the federal securities laws and do not affect the availability of equitable remedies, such as an injunction or rescission.


In addition, our bylaws provide that:


 


• we will indemnify our directors, officers
and, in the discretion of our board of directors, certain employees, to the fullest extent permitted by the DGCL, subject to limited exceptions,
including an exception for indemnification in connection with a proceeding (or counterclaim) initiated by such persons; and


 


• we will advance expenses, including attorneys’
fees, to our directors and, in the discretion of our board of directors, certain officers and employees, in connection with legal proceedings,
subject to limited exceptions.


 


We also maintain general liability insurance that
covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as directors
or officers, including liabilities under the Securities Act. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, or persons who control us, we have been informed that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is therefore unenforceable.


 


These provisions may discourage stockholders from
bringing a lawsuit against our directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the
likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit
us and our stockholders. Furthermore, a stockholder’s investment may be adversely affected to the extent we pay the costs of settlement
and damage awards against directors and officers pursuant to these indemnification provisions. We believe that these provisions, the indemnification
agreements and the insurance are necessary to attract and retain talented and experienced directors and officers.


 


Transfer Agent and Registrar


 


The transfer agent and registrar for our common
stock is VStock Transfer, LLC. The transfer agent’s address is 18 Lafayette Place, Woodmere, NY 11598, and its telephone number
is (212) 828-8436.


 


The Nasdaq Capital Market


 


Our common stock is presently quoted on The Nasdaq
Capital Market under the symbol “KBNT”. Our common stock purchase warrants issued in connection with our initial public offering
in August 2020 are currently listed on The Nasdaq Capital Market under the symbol “KBNTW.”