As
filed with the Securities and Exchange Commission on July 28, 2023
Registration
No. 333-_______
United
States
SECURITIES
AND EXCHANGE cOMMISSION
Washington,
D.C. 20549
fOrm
S-8
registration
statement
under
the securities act of 1933
Xtant
Medical holdings, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or other jurisdiction of
incorporation
or organization) |
|
20-5313323
(I.R.S.
Employer
Identification
No.) |
| |
|
|
664
Cruiser Lane
Belgrade,
Montana
(Address
of Principal Executive Offices) |
|
59714
(Zip
Code) |
Xtant
Medical Holdings, Inc. 2023 Equity Incentive Plan
(Full
title of the plan)
Sean
E. Browne
President
and Chief Executive Officer
Xtant
Medical Holdings, Inc.
664
Cruiser Lane
Belgrade,
Montana 59714
(Name
and address of agent for service)
(406)
388-0480
(Telephone
number, including area code, of agent for service)
Copies
requested to:
Amy
E. Culbert, Esq.
Emily
Humbert, Esq.
Fox
Rothschild LLP
City
Center
33
South Sixth Street, Suite 3600
Minneapolis,
Minnesota 55402-3601
(612)
607-7000
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large
accelerated filer ☐ |
Accelerated
filer ☐ |
| Non-accelerated
filer ☒ |
Smaller
reporting company ☒ |
| |
Emerging
growth company ☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY
NOTE
On
July 26, 2023 (Effective Date), the stockholders of Xtant Medical Holdings, Inc. (Registrant or Company) approved and adopted the Xtant
Medical Holdings, Inc. 2023 Equity Incentive Plan (2023 Plan), which was approved by the Company’s Board of Directors on April
26, 2023. As of the Effective Date, the Company’s authority to grant new awards under the Xtant Medical Holdings, Inc. 2018 Equity
Incentive Plan, as amended and restated (2018 Plan), terminated upon stockholder approval of the 2023 Plan on such date. The maximum
number of shares of the Company’s common stock, par value $0.000001 per share (Common Stock), available for issuance under the
2023 Plan, subject to adjustment pursuant to the terms of the 2023 Plan, is (i) 5,500,000 shares of Common Stock (New 2023 Plan Shares);
(ii) 7,695,812 shares of Common Stock remaining available for issuance under the 2018 Plan but not subject to outstanding awards under
the 2018 Plan as of the Effective Date (2018 Plan Carryover Shares); and (iii) up to 6,686,090 shares of Common Stock subject to awards
outstanding under the 2018 Plan as of the Effective Date but only to the extent such awards are subsequently forfeited, cancelled, expire,
or otherwise terminate without the issuance of such shares of Common Stock after the Effective Date (2018 Plan Unused Award Shares).
The
Company has filed this Registration Statement on Form S-8 (this Registration Statement) with the Securities and Exchange Commission (SEC)
under the Securities Act of 1933, as amended (Securities Act), to register the 5,500,000 New 2023 Plan Shares and such indeterminate
number of shares as may become available under the 2023 Plan as a result of the adjustment provisions thereof pursuant to Rule 416(a)
under the Securities Act.
The
following shares of Common Stock issuable under the 2018 Plan were previously registered on the following registration statements filed
by the Company with the SEC on the dates as set forth below (collectively, 2018 Plan Registration Statements):
| ● | Registration
Statement on Form S-8 (Registration No. 333-268052) filed by the Company on October 28, 2022
registering 8,500,000 shares of Common Stock; |
| ● | Registration
Statement on Form S-8 (Registration No. 333-249762) filed by the Company on October 30, 2020
registering 5,550,308 shares of Common Stock; |
| ● | Registration
Statement on Form S-8 (Registration No. 333-234595) filed by the Company on November 8, 2019
registering 1,500,000 shares of Common Stock; and |
| ● | Registration
Statement on Form S-8 (Registration No. 333-226588) filed by the Company on August 3, 2018
registering 1,307,747 shares of Common Stock. |
Contemporaneously
with the filing of this Registration Statement, the Company is filing with the SEC a Post-Effective Amendment No. 1 to each of the 2018
Plan Registration Statements to reflect that the Company’s authority to grant new awards under the 2018 Plan terminated and to
add the 2023 Plan and reflect that, as of the Effective Date, the previously registered 2018 Plan Carryover Shares and any 2018 Plan
Unused Award Shares may be issued under the 2023 Plan.
PART
I
Information
Required In The SECTION 10(a)
PROSPECTUS
Item
1. Plan Information.
The
document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants in the 2023 Plan in accordance
with Rule 428(b)(1) under the Securities Act. Such documents are not required to be and are not being filed with the SEC either as part
of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act, but constitute,
along with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof, a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
Item
2. Registrant Information and Employee Plan Annual Information.
The
Company will furnish without charge to each person to whom the prospectus is delivered, upon the written or oral request of such person,
a copy of any and all of the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof,
other than exhibits to such documents (unless such exhibits are specifically incorporated by reference in such documents that are incorporated),
and the other documents required to be delivered to eligible participants in the 2023 Plan pursuant to Rule 428(b) under the Securities
Act. Those documents are incorporated by reference in the Section 10(a) prospectus. Requests should be directed to:
Xtant
Medical Holdings, Inc.
664
Cruiser Lane
Belgrade,
Montana 59714
Attention:
Chief Executive Officer
Tel:
(406) 388-0480
PART
II
Information
Required In The Registration Statement
Item
3. Incorporation of Documents by Reference.
The
Company hereby incorporates by reference into this Registration Statement the following documents which have been previously filed (not
furnished) with the SEC (SEC File No. 001-34951):
| ● | the
Company’s Current Reports on Form 8-K (other than portions thereof furnished under
Item 2.02 or Item 7.01 of Form 8-K and exhibits accompanying such reports that are related
to such items) filed on January
9, 2023, February
1, 2023, March
1, 2023 (as amended on May
16, 2023), May
4, 2023, May
18, 2023, May
19, 2023, June
20, 2023, July
3, 2023, July
11, 2023, July
28, 2023 and July 28, 2023; |
| ● | the
description of the Company’s common stock contained in its registration statement on
Form 8-A, filed on October 15, 2015, as amended March 8, 2022, including any amendment or
reports filed for the purpose of updating such description. |
In
addition, all other documents filed (not furnished) by the Company pursuant to Section 13(a), Section 13(c), Section 14 or Section 15(d)
of the Securities Exchange Act of 1934, as amended (Exchange Act) on or after the date of this Registration Statement and prior to the
filing of a post-effective amendment to this Registration Statement that indicates that all securities offered hereby have been sold
or that deregisters all securities then remaining unsold shall be deemed to be incorporated in this Registration Statement by reference
and to be a part of this Registration Statement from the date of filing of such documents; provided, however, that documents
or information deemed to have been furnished to and not filed with the SEC in accordance with the rules of the SEC shall not be deemed
incorporated by reference into this Registration Statement.
Any
statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which
also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
Delaware
General Corporation Law
Section
145(a) of the General Corporation Law of the State of Delaware (DGCL) provides that a corporation may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is
or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection
with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction
or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith
and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
Section
145(b) of the DGCL states that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of
the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which
the person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery
or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the Delaware
Court of Chancery or such other court shall deem proper.
Section
145(c) of the DGCL provides that to the extent that a present or former director or officer of a corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense
of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and
reasonably incurred by such person in connection therewith.
Section
145(d) of the DGCL states that any indemnification under subsections (a) and (b) of Section 145 (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director,
officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of Section 145. Such determination shall be made with respect to a person who is a director or officer at the
time of such determination (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though
less than a quorum, (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum,
(3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion or (4) by the stockholders.
Section
145(f) of the DGCL states that the indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections
of Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may
be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s
official capacity and as to action in another capacity while holding such office.
Section
145(g) of the DGCL provides that a corporation shall have the power to purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted
against such person and incurred by such person in any such capacity or arising out of such person’s status as such, whether or
not the corporation would have the power to indemnify such person against such liability under the provisions of Section 145.
Section
145(j) of the DGCL states that the indemnification and advancement of expenses provided by, or granted pursuant to, Section 145 shall,
unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
Section
102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director or officer of the corporation
shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director
or an officer, except for liability for any breach of the director’s or officer’s duty of loyalty to the corporation or its
stockholders, for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, for unlawful
payments of dividends or unlawful stock purchases or redemptions in the case of a director, for any transaction from which the director
or officer derived an improper personal benefit or in the case of an officer any action by or in the right of the corporation. No such
provision shall eliminate or limit the liability of a director or officer for any act or omission occurring prior to the date when such
provision becomes effective.
Certificate
of Incorporation
The
Company has adopted provisions in its Amended and Restated Certificate of Incorporation that limit director and officer liability to
the maximum extent permitted under the DGCL.
Bylaws
The
Company’s Third Amended and Restated Bylaws provide for the indemnification of directors and officers to the fullest extent permitted
by applicable law.
Indemnification
Agreements
The
Company has entered into agreements with its directors and executive officers that require the Company to indemnify them against certain
liabilities that may arise by reason of their status or service as directors or executive officers to the fullest extent not prohibited
by Delaware law.
Insurance
Policies
The
Company purchased an insurance policy that purports to insure our directors and officers against certain liabilities incurred by them
in the discharge of their functions as directors and officers.
Xtant
Medical Holdings, Inc. 2023 Equity Incentive Plan
Section
22.11 of the Xtant Medical Holdings, Inc. 2023 Equity Incentive Plan provides that subject to any limitations and requirements of Delaware
law, each individual who is or will have been a member of the Board, or a committee appointed by the Board, or an officer or employee
of the Company to whom authority was delegated in accordance with Section 3.3 of the 2023 Plan, will be indemnified and held harmless
by the Company against and from any loss, cost, liability or expense that may be imposed upon or reasonably incurred by him or her in
connection with or resulting from any claim, action, suit or proceeding to which he or she may be a party or in which he or she may be
involved by reason of any action taken or failure to act under the 2023 Plan and against and from any and all amounts paid by him or
her in settlement thereof, with the Company’s approval, or paid by him or her in satisfaction of any judgment in any such action,
suit or proceeding against him or her, provided he or she will give the Company an opportunity, at its own expense, to handle and defend
the same before he or she undertakes to handle and defend it on his/her own behalf.
The
foregoing description of Section 145 of the DGCL, our Amended and Restated Certificate of Incorporation, Second Amended and Restated
Bylaws and the 2023 Plan is only a summary and is qualified in its entirety by the full text of each of the foregoing.
The
Company understands that it is the position of the SEC that insofar as the foregoing provisions may be invoked to disclaim liability
for damages arising under the Securities Act, that such provisions are against public policy as expressed in the Securities Act and are
therefore unenforceable.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The
following exhibits are filed with or incorporated by reference into this Registration Statement:
Exhibit
No. |
|
Description |
| |
|
| 4.1 |
|
Amended and Restated Certificate of Incorporation of Xtant Medical Holdings, Inc. (filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on February 13, 2018 (SEC File No. 001-34951) and incorporated by reference herein) |
| |
|
| 4.2 |
|
Certificate of Amendment of the Amended and Restated Certificate of Incorporation of Xtant Medical Holdings, Inc. (filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on October 31, 2019 (SEC File No. 001-34951) and incorporated by reference herein) |
| |
|
| 4.3 |
|
Certificate of Amendment of the Amended and Restated Certificate of Incorporation of Xtant Medical Holdings, Inc., as Amended (filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on October 1, 2020 (SEC File No. 001-34951) and incorporated by reference herein) |
| |
|
| 4.4 |
|
Certificate of Amendment of the Amended and Restated Certificate of Incorporation of Xtant Medical Holdings, Inc., as Amended (filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on July 28, 2023 (SEC File No. 001-34951) and incorporated by reference herein) |
| |
|
| 4.5 |
|
Certificate of Amendment of the Amended and Restated Certificate of Incorporation of Xtant Medical Holdings, Inc., as Amended (filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on July 28, 2023 (SEC File No. 001-34951) and incorporated by reference herein) |
| |
|
| 4.6 |
|
Certificate of Amendment of the Amended and Restated Certificate of Incorporation of Xtant Medical Holdings, Inc., as Amended (filed as Exhibit 3.3 to the Registrant’s Current Report on Form 8-K filed with the SEC on July 28, 2023 (SEC File No. 001-34951) and incorporated by reference herein) |
| |
|
| 4.7 |
|
Third Amended and Restated Bylaws of Xtant Medical Holdings, Inc. (Effective as of June 1, 2023) (filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on May 19, 2023 (SEC File No. 001-34951 and incorporated by reference herein) |
| |
|
| 4.8 |
|
Form of Common Stock Certificate of Xtant Medical Holdings, Inc. (filed as Exhibit 4.2 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2021 filed with the SEC on March 8, 2022 (SEC File No. 001-34951) and incorporated by reference herein) |
| |
|
| 5.1* |
|
Opinion of Fox Rothschild LLP regarding the validity of the shares of common stock being registered |
| |
|
|
| 23.1* |
|
Consent of Plante & Moran, PLLC |
| |
|
| 23.2* |
|
Consent of Plante & Moran, PLLC with respect to the abbreviated financial statements of Surgalign SPV, Inc., which report appears in a Current Report on Form 8-K/A of Xtant Medical Holdings, Inc. filed May 16, 2023 |
| |
|
| 23.3* |
|
Consent of Fox Rothschild LLP (included within the opinion filed as Exhibit 5.1) |
| |
|
| 24.1* |
|
Power of Attorney (included on signature page to this Registration Statement) |
| |
|
|
| 99.1 |
|
Xtant Medical Holdings, Inc. 2023 Equity Incentive Plan (filed as Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on July 28, 2023 (SEC File No. 001-34951) and incorporated by reference herein) |
| |
|
|
107* |
|
Filing Fee Table |
Item
9. Undertakings.
(a) The
Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement;
(2) That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(b) The
Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to the directors, officers, and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director,
officer, or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer, or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities Act and will be governed by final adjudication of such
issue.
Signatures
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Belgrade, State of Montana, on July 28, 2023.
| |
XTANT MEDICAL
HOLDINGS, INC. |
| |
|
|
| |
By: |
/s/ Sean E. Browne |
| |
|
Sean E. Browne |
| |
|
President and Chief Executive
Officer |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Stavros Vizirgianakis, Sean E.
Browne and Scott C. Neils, and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution
for him or her in any and all capacities, to sign (i) any and all amendments (including post-effective amendments) to this Registration
Statement and (ii) any registration statement or post-effective amendment thereto to be filed with the Securities and Exchange Commission
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as
fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
| Name
and Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Sean E. Browne |
|
President
and Chief Executive Officer and Director |
|
July
28, 2023 |
| Sean
E. Browne |
|
(principal
executive officer) |
|
|
| |
|
|
|
|
| /s/
Scott C. Neils |
|
Chief
Financial Officer |
|
July
28, 2023 |
| Scott
C. Neils |
|
(principal
financial and accounting officer) |
|
|
| |
|
|
|
|
| /s/
Stavros Vizirgianakis |
|
Chairman
of the Board |
|
July
28, 2023 |
| Stavros
Vizirgianakis |
|
|
|
|
| |
|
|
|
|
| /s/
John K. Bakewell |
|
Director |
|
July
28, 2023 |
| John
K. Bakewell |
|
|
|
|
| |
|
|
|
|
| /s/
Jonn R. Beeson |
|
Director |
|
July
28, 2023 |
| Jonn
R. Beeson |
|
|
|
|
| |
|
|
|
|
| /s/
Lori Mitchell-Keller |
|
Director |
|
July
28, 2023 |
| Lori
Mitchell-Keller |
|
|
|
|
| |
|
|
|
|
| /s/
Robert E. McNamara |
|
Director |
|
July
28, 2023 |
| Robert
E. McNamara |
|
|
|
|
Exhibit 5.1
[Fox Rothschild LLP Letterhead]
July 28, 2023
Xtant Medical Holdings, Inc.
664 Cruiser Lane
Belgrade, Montana 59714
| Re: |
Xtant Medical Holdings, Inc. |
Registration Statement on
Form S-8
Ladies and Gentlemen:
We have acted as counsel to Xtant Medical Holdings,
Inc., a Delaware corporation (the “Company”), in connection with the Company’s registration of an aggregate of 5,500,000
shares (collectively, the “Shares”) of the Company’s common stock, par value $0.000001 per share (the “Common
Stock”), issuable under the Xtant Medical Holdings, Inc. 2023 Equity Incentive Plan (the “Plan”) pursuant to a registration
statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”),
filed by the Company with the Securities and Exchange Commission (the “SEC”) on July 28, 2023.
In connection with this opinion, we have examined
and relied upon the originals, or copies certified or otherwise identified to our satisfaction, of such records, documents, certificates
and other instruments as in our judgment are necessary or appropriate to enable us to render the opinions expressed below. As to certain
factual matters, we have relied upon certificates of the officers of the Company and have not sought to independently verify such matters.
In rendering this opinion, we have assumed the genuineness
and authenticity of all signatures on original documents; the legal capacity of all natural persons; the authenticity of all documents
submitted to us as originals; the conformity to originals of all documents submitted to us as certified or photocopies; the authenticity
of the originals of such latter documents, including electronic signatures made and/or transmitted using electronic signature technology
(e.g., via DocuSign or similar electronic signature technology); that any such signed electronic record shall be valid and as effective
to bind the party so signing as a paper copy bearing such party’s handwritten signature; the accuracy and completeness of all documents
and records reviewed by us; the accuracy, completeness and authenticity of certificates issued by any governmental official, office or
agency and the absence of change in the information contained therein from the effective date of any such certificate; and other than
for the Company, the due authorization, execution and delivery of all documents where authorization, execution and delivery are prerequisites
to the effectiveness of such documents.
Our opinion herein is expressed solely with respect
to the General Corporation Law of the State of Delaware (including the statutory provisions, all applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting the foregoing) and is based on these laws as in effect on the date hereof. We
express no opinion as to whether the laws of any jurisdiction are applicable to the subject matter hereof. We are not rendering any opinion
as to compliance with any federal or other state law, rule or regulation relating to securities, or to the sale or issuance thereof.
On the basis of the foregoing and in reliance thereon,
and subject to the qualifications herein stated, we are of the opinion that the Shares registered pursuant to the Registration Statement
have been duly and validly authorized and reserved for issuance and that upon the issuance of the Shares and payment therefor in accordance
with the provisions of the Plan, the Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as
an exhibit to the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act or the rules and regulations of the SEC thereunder. This opinion is expressed as of
the date hereof, and we disclaim any undertaking to update or supplement this opinion or to advise you of any subsequent changes in the
facts stated or assumed herein or of any subsequent changes in applicable law.
| |
Very truly yours, |
| |
|
| |
/s/ Fox Rothschild LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
The Board of Directors
Xtant Medical Holdings, Inc.:
We consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 7, 2023, with respect to the consolidated financial statements of Xtant Medical
Holdings, Inc. included in its Annual Report on Form 10-K as of and for the years ended December 31, 2022 and 2021, as filed with the
Securities and Exchange Commission.
Denver, Colorado
July 28, 2023
Exhibit 23.2
Consent of Independent Registered Public Accounting
Firm
The Board of Directors
Xtant Medical Holdings, Inc.:
We consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated May 16, 2023 with respect to the abbreviated financial statements of Surgalign
SPV, Inc., which report appears in the Form 8-K/A of Xtant Medical Holdings, Inc. filed with the Securities and Exchange Commission on
May 16, 2023.
Denver, Colorado
July 28, 2023
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Xtant Medical Holdings, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security
Type | |
Security
Class Title | |
Fee
Calculation
Rule | |
Amount
Registered(1) | | |
Proposed
Maximum
Offering
Price Per
Unit(2) | | |
Maximum
Aggregate
Offering
Price | | |
Fee Rate | |
Amount of
Registration
Fee(3) | |
| Equity | |
Common Stock, par value $0.000001 per share | |
457(c) and 457(h) | |
| 5,500,000 shares | | |
$ | 0.87 | | |
$ | 4,785,000 | | |
$110.20 per $1,000,000 | |
$ | 527.31 | |
| Total Offering Amounts | | |
$ | 4,785,000 | | |
| |
$ | 527.31 | |
| Total Fee Offsets | | |
| | | |
| |
| 0 | |
| Net Fee Due | | |
| | | |
| |
$ | 527.31 | |
| (1) |
Pursuant to Rule 416 under the Securities Act of 1933, as amended (Securities Act), this registration statement will also cover any additional shares of common stock, par value $0.000001 per share, of Xtant Medical Holdings, Inc. (Common Stock) that become issuable under the Xtant Medical Holdings, Inc. 2023 Equity Incentive Plan (2023 Plan) by reason of any stock split, stock dividend, recapitalization or other similar transaction effected without the registrant’s receipt of consideration which would increase the number of outstanding shares of Common Stock. |
| |
|
| (2) |
Estimated solely for the purpose of calculating the amount of the registration fee and calculated pursuant to Rule 457(c) and Rule 457(h) under the Securities Act on the basis of the average of the high and low sales prices of the Common Stock on July 26, 2023, as reported by the NYSE American. |
| |
|
| (3) |
The Registrant does not have any fee offsets. |
Xtant Medical (AMEX:XTNT)
Gráfico Histórico do Ativo
De Jan 2025 até Fev 2025
Xtant Medical (AMEX:XTNT)
Gráfico Histórico do Ativo
De Fev 2024 até Fev 2025
