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 (Exchange Act): 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, 2021 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 Broadridge Corporate Issuer Solutions, Inc.


 


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. Notwithstanding the foregoing, Section 27 of the Exchange
                                            Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or
                                            liability created by the Exchange Act or the rules and regulations thereunder and Section
                                            22 of the Securities Act of 1933, as amended (Securities Act), creates concurrent jurisdiction
                                            for federal and state courts over all suits brought to enforce any duty or liability created
                                            by the Securities Act or the rules and regulations thereunder. As a result, the exclusive
                                            forum provision will not apply to suits brought to enforce any duty or liability created
                                            by the Exchange Act, the Securities Act, or any other claim for which the federal courts
                                            have exclusive jurisdiction.



 


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.