Exhibit
4.1


 


XTANT
MEDICAL HOLDINGS, INC.


 


DESCRIPTION
OF SECURITIES REGISTERED PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934


 


Xtant
Medical Holdings, Inc., a Delaware corporation (Xtant, we, us and our), has only one class of securities registered under Section
12 of the Securities Exchange Act of 1934, as amended: our common stock, par value $0.000001 (common stock).


 


The
following description summarizes the material terms and provisions of our common stock and does not purport to be complete. It
is subject to and qualified in its entirety by reference to the provisions of our Amended and Restated Certificate of Incorporation,
as amended (Certificate of Incorporation), our Second Amended and Restated Bylaws (Bylaws) and the Investor Rights Agreement dated
as of February 14, 2018, by and among Xtant and certain stockholders (Investor Rights Agreement), which are filed as exhibits
to our Annual Report on Form 10-K for the fiscal year ended December 31, 2020 and are incorporated by reference herein. We encourage
you to read our Certificate of Incorporation, our Bylaws, the Investor Rights Agreement and the applicable provisions of the General
Corporation Law of the State of Delaware for additional information.


 


Authorized
Shares


 


Our
Certificate of Incorporation provides that we have authority to issue 300,000,000 shares of common stock and 10,000,000 shares
of preferred stock, par value $0.000001 per share (preferred stock).


 


Our
preferred stock may be issued from time to time in one or more series. The Board of Directors of Xtant (the Board) is authorized,
by resolution or resolutions, to fix the number of shares of any series of preferred stock and to determine the designation, powers,
rights, preferences, qualifications, limitations, privileges and restrictions, if any, of any wholly unissued series of preferred
stock, including without limitation, authority to fix by resolution or resolutions the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund provisions), redemption price or prices and liquidation
preferences of any such series, and the number of shares constituting any such series and the designation thereof, or any of the
foregoing.


 


We
may amend from time to time our Certificate of Incorporation to increase the number of authorized shares of common stock or preferred
stock. Any such amendment would require the approval of the holders of a majority of the voting power of the shares entitled to
vote thereon. In addition, pursuant to our Certificate of Incorporation, the Board is authorized to increase (but not above the
total number of authorized shares of the class) or decrease (but not below the number of shares of any such series then outstanding)
the number of shares of any series (including a series of preferred stock), the number of which was fixed by it, subsequent to
the issuance of shares of such series then outstanding, subject to certain limitations, without the vote of our stockholders.


 


Voting
Rights


 


Each
holder of our common stock is entitled to one vote per share on each matter submitted to a vote at a meeting of stockholders,
including in all elections for directors. Stockholders are not entitled to cumulative voting in the election of directors. Subject
to applicable law and the rights, if any, of the holders of outstanding shares of any series of preferred stock we may designate
and issue in the future, holders of our common stock are entitled to vote on all matters on which stockholders are generally entitled
to vote.


 


Our
stockholders may vote either in person or by proxy. At all meetings of stockholders for the election of directors at which a quorum
is present, a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders
at a meeting at which a quorum is present shall, unless otherwise provided by our Certificate of Incorporation, our Bylaws, the
rules or regulations of any stock exchange applicable to us or applicable law or pursuant to any regulation applicable to us or
our securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of our stock that
are present in person or by proxy and entitled to vote thereon.


 




    	 



    	 



    

 


Dividends


 


The
Board may authorize, and we may make, distributions to our stockholders, subject to any restriction in our Certificate of Incorporation
and to those limitations prescribed by law and contractual restrictions. Subject to preferences that may apply to any shares of
preferred stock outstanding at the time, the holders of our common stock will be entitled to share equally, identically and ratably
in any dividends that the Board may determine to issue from time to time.


 


Liquidation
Rights


 


Upon
liquidation, dissolution or winding up, all holders of our common stock are entitled to participate pro rata in our assets available
for distribution, subject to applicable law and the rights, if any, of the holders of any class of preferred stock then outstanding.


 


Other
Rights and Preferences


 


Under
the terms of our Certificate of Incorporation and Bylaws, holders of our common stock have no preemptive rights, conversion rights
or subscription rights, and there are no redemption or sinking fund provisions applicable to our common stock. The rights, preferences
and privileges of the holders of our 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 the Board may designate and issue in the future. Our Certificate of Incorporation
and Bylaws do not restrict the ability of a holder of our common stock to transfer his, her or its shares of common stock. All
shares of our common stock currently outstanding are fully paid and non-assessable.


 


Transfer
Agent


 


The
transfer agent for our common stock is EQ Shareowner Services.


 


Exchange
Listing


 


Our
common stock is listed on NYSE American under the symbol “XTNT.”


 


Anti-Takeover
Effects of Certain Provisions of our Certificate of Incorporation, Bylaws and Investor Rights Agreement and Our Status as a Controlled
Company


 


Anti-takeover
provisions in our Certificate of Incorporation, Bylaws and Investor Rights Agreement and our status as a controlled company may
discourage or prevent a change in control, even if such a sale could be beneficial to our stockholders.


 


Certificate
of Incorporation and Bylaws


 


Our
Certificate of Incorporation and Bylaws contain the following anti-takeover provisions that may have an anti-takeover effect of
delaying, deferring or preventing a change in control of Xtant:


 


	 	●	We
    have shares of common stock and preferred stock available for issuance without stockholder approval. The existence of unissued
    and unreserved common stock and preferred stock may enable the Board to issue shares to persons friendly to current management
    or to issue preferred stock with terms that could render more difficult or discourage a third-party attempt to obtain control
    of us by means of a merger, tender offer, proxy contest or otherwise, thereby protecting the continuity of our management.


 




    	 



    	 



    

 


	 	●	Shares
    of our common stock do not have cumulative voting rights in the election of directors, so our stockholders holding a majority
    of the shares of common stock outstanding will be able to elect all of our directors.
	 	 	 
	 	●	Special
    meetings of the stockholders may be called only by the Board, the chairman of the Board or the chief executive officer. 
	 	 	 
	 	●	The
    Board may adopt, alter, amend or repeal our Bylaws without stockholder approval.
	 	 	 
	 	●	Unless
    otherwise provided by law, any newly created directorship or any vacancy occurring on the Board for any cause may be filled
    by the affirmative vote of a majority of the remaining members of the Board, even if such majority is less than a quorum,
    and any director so elected shall hold office until the expiration of the term of office of the director whom he or she has
    replaced or until his or her successor is elected and qualified.
	 	 	 
	 	●	The
    affirmative vote of the holders of at least two-thirds of the voting power of the then outstanding shares of our capital stock
    entitled to vote generally in the election of directors, voting together as a single class, is required to amend or repeal
    the provisions of our Certificate of Incorporation related to the amendment of our Bylaws, the Board and our stockholders
    as well as the general provisions of our Certificate of Incorporation. 
	 	 	 
	 	●	Stockholders
    must follow advance notice procedures to submit nominations of candidates for election to the Board at an annual or special
    meeting of our stockholders and must follow advance notice procedures to submit other proposals for business to be brought
    before an annual meeting of our stockholders. 
	 	 	 
	 	●	Unless
    we consent in writing to an alternative forum, the Court of Chancery of the State of Delaware will be the exclusive forum
    for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of a fiduciary
    duty owed by any director, officer or other employee of Xtant to us or our stockholders, (iii) any action asserting a claim
    arising under any provision of the General Corporation Law of the State of Delaware, our Certificate of Incorporation or our
    Bylaws, or (iv) any action asserting a claim governed by the internal-affairs doctrine. 


 


Investor
Rights Agreement


 


We
are party to an Investor Rights Agreement, which includes certain provisions that may have an anti-takeover effect of delaying,
deferring or preventing a change in control of Xtant. The Investor Rights Agreement includes director nomination rights, which
provide that so long as the Ownership Threshold (as defined in the Investor Rights Agreement) is met, OrbiMed Royalty Opportunities
II, LP and ROS Acquisition Offshore LP (collectively, the Investors) are entitled to nominate such individuals to the Board constituting
a majority of the directors. In addition, under the Investor Rights Agreement, so long as the Ownership Threshold is met, certain
matters require the approval of the Investors to proceed with such a transaction, including without limitation, the sale, transfer
or other disposition of assets or businesses of the Company or its subsidiaries with a value in excess of $250,000 in the aggregate
during any fiscal year (other than sales of inventory or supplies in the ordinary course of business, sales of obsolete assets
(excluding real estate), sale-leaseback transactions and accounts receivable factoring transactions).


 


Controlled
Company Status


 


We
are a “controlled company” as defined in section 801(a) of the NYSE American Company Guide because more than 50% of
the combined voting power of all of our outstanding common stock is beneficially owned by OrbiMed Advisors LLC. Our status as
a controlled company may have an anti-takeover effect of delaying, deferring or preventing a change in control of Xtant.