Digital securities are often equipped with a qualified subordination clause and a pre-insolvency enforcement bar. The claims arising from the digital security constitute subordinated creditor rights in relation to the claims of other creditors of the issuer. In order to avoid over-indebtedness of the issuer within the meaning of insolvency law pursuant to Section 19 (2) InsO, as well as in the event that a liquidation procedure is carried out, a subordination is agreed pursuant to Section 39 (2) InsO with regard to all present and future claims of the creditors arising from the digital security – including claims for interest and repayment of the invested capital – in such a way that all claims of the holders of digital securities are to be satisfied only after all claims and receivables of all existing and future creditors of the issuer designated in Section 39 (1) nos. 1 to 5 InsO. The claims of the holders of digital securities can be settled only out of future annual surpluses, any liquidation surplus, or other free assets remaining after all other creditors of the issuer have been satisfied. This arrangement may lead to a permanent non-fulfilment of the creditors' claims arising from the digital security. Nevertheless, as a rule no participation, involvement and/or voting rights at or in the shareholders' meeting of the issuers are granted.
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