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Three shareholder agreement provisions that D.Lgs. 47/2026 broke — and what in-house counsel must do at the next board meeting
A bidder launches a full tender offer on an Italian listed target. It acquires 91% of voting capital. Under the old rules, it would have needed 95% to force out the remaining holders. Under new Article 111 of the Consolidated Finance Act (Testo Unico della Finanza, or TUF), amended by Legislative Decree 47 of 27 March 2026 (D.Lgs. 47/2026), 91% is enough. The squeeze-out right — the statutory right to compulsorily acquire the residual minority — has already vested. The bidder's SPA, signed eight months earlier, still says "subject to 100% ownership at closing." That conditionality is now broken. The deal team has a problem.
D.Lgs. 47/2026, published in the Gazzetta Ufficiale No. 86 on 14 April 2026 and in force from 29 April 2026, amends Article 111 TUF by reducing the squeeze-out threshold from 95% to 90% of voting capital following a successful tender offer. The sell-out right — the mirror right allowing residual minority holders to force the buyer to purchase their shares — is aligned symmetrically at the same 90% level. Both rights arise once the buyer, acting alone or in concert, holds at least 90% of the voting capital of the target after a qualifying tender offer.
The reform also extends the squeeze-out mechanism beyond the context of a full voluntary tender offer. Under amended Article 111 TUF, the threshold can now be crossed through purchases made in fulfilment of the compulsory sell-out obligation under Article 108(2) TUF, not only through acceptances of an offer. That is a meaningful expansion. A bidder who reaches 90% by satisfying / taking up sell-out requests is now also entitled to squeeze out any remaining holders.
Two further points that practitioners routinely miss. First, the 90% calculation is based on voting capital, not total share capital. For companies with dual-class share structures — increasingly common after the TUF reform's new provisions on multiple-voting shares — a buyer may hold 91% of economic capital but only 88% of voting capital if the minority holds enhanced-voting stock. The squeeze-out right does not arise. Second, the reform also extends squeeze-out rights to financial instruments other than ordinary shares, including savings shares (azioni di risparmio). Each class must be assessed separately.
CONSOB's secondary regulations on the pricing methodology for the compulsory acquisition have not yet been issued / remain outstanding. Until those regulations are finalised, the pricing reference point remains the tender offer price, subject to CONSOB review. Buyers should model a fair-value challenge risk in any deal where the minority may dispute the offer consideration.
Yes — but the mechanism is more specific than most practitioners realise. The transitional rule in D.Lgs. 47/2026 grandfathers offers formally notified to CONSOB before 29 April 2026. If your offer was in CONSOB's pipeline before that date, the pre-reform rules continue to apply in full until 31 December 2026. Any offer notified on or after 29 April 2026 is governed by the new regime, regardless of when the underlying SPA was signed. Signing a purchase agreement in January 2026 does not grandfather the bid: it is the date of formal CONSOB notification, not the commercial agreement, that determines which rules apply.
The practical consequence for cross-border deals is stark. Many SPAs signed between mid-2025 and April 2026 assumed a 95% squeeze-out threshold. If CONSOB notification happened after 29 April 2026 — as it would for any deal that was still in due diligence or regulatory clearance at that date — the new 90% threshold governs. Three categories of contractual provision are now mis-calibrated.
omit or use plain English gloss only — things must be weighed, not merely counted. The reform changes a single number in Article 111 TUF, but that change has uneven implications across your transaction documents.
Condition precedent on 100% ownership at closing. Many SPAs for listed targets include a condition that the buyer achieve 100% ownership as a condition precedent to closing, with the logic that the squeeze-out right will be exercised in the post-closing integration phase. Under the old rules, a buyer who reached 95% could exercise squeeze-out within three months of the offer closing, making a 100% ownership CP workable in practice on a predictable timetable. The 90% threshold does not change the CP logic directly — a buyer still needs to reach 100% eventually. What it changes is the cost of missing the CP. A buyer who reaches, say, 88% of voting capital cannot exercise squeeze-out at all. If voting capital and economic capital diverge because of dual-class stock, the buyer may reach 90% of economic interests but fall short on voting capital. The CP fails. Your MAC clause and termination mechanics need to address that scenario expressly. At a minimum, general counsel should insert a specific carve-out defining what happens if the buyer achieves 90% or more of economic capital but less than 90% of voting capital at the time squeeze-out rights are meant to arise.
Tag-along threshold calibrated to the old 95% floor. Shareholder agreements for partially acquired Italian targets — where the buyer holds a controlling stake but has not yet launched a full tender offer — frequently include tag-along rights that are triggered when the controlling shareholder crosses a defined threshold. Agreements drafted before April 2026 often set that threshold at 94% or 95%, with the implicit assumption that the buyer would need to acquire to that level before squeeze-out became available. A SHA that triggers the minority's tag-along at 95% now gives the minority a potentially illusory right: the buyer can acquire to 90%, exercise squeeze-out under Article 111 TUF without the tag-along ever firing, and the minority is compulsorily cashed out at the tender offer price rather than at the tag-along formula, which may differ. Review every SHA where the tag-along threshold sits between 90% and 95%. The gap between those two numbers is where minority protections have silently disappeared.
Exit mechanics in the SHA assuming a squeeze-out at 95%. Put and call option structures in SHAs for Italian listed or soon-to-be-listed targets routinely include a call option for the majority at a threshold calibrated to match the squeeze-out floor, on the understanding that at 95% the buyer can mop up cheaply via statutory squeeze-out rather than paying a negotiated premium. That assumption now fails. At 90% the statutory route is available — but the CONSOB secondary regulations on pricing are still pending, which introduces fair-value uncertainty. A buyer who expected to use the statutory squeeze-out as a cost-controlled exit mechanism at 95% must now decide at 90% whether to exercise the statutory right under uncertain pricing rules or exercise a contractual call option at a negotiated price. If the SHA call option threshold was set at 95%, it has not automatically dropped to 90%. The buyer has a window between 90% and 95% where the statutory right has vested but the contractual call option has not yet opened. That gap needs a side letter or an amendment before the offer closes.
Unlike Italy, the United States has no uniform federal squeeze-out rule. Compulsory buyout rights in US deals are a matter of state corporate law. In Delaware — the governing state for most M&A transactions involving listed US targets — a short-form merger under Section 253 of the Delaware General Corporation Law allows a parent holding at least 90% of the shares of a subsidiary to merge out the minority without a subsidiary-level shareholder vote, paying fair value determined by appraisal. In practice, US deal teams structure tender offers to reach 90% precisely so they can deploy the short-form merger immediately after offer closing, bypassing a full stockholder vote. That logic now maps onto Italy almost directly: an Italian buyer targeting a listed Italian company should model its offer acceptance threshold at 90% of voting capital, knowing that squeeze-out under Article 111 TUF becomes available at exactly that level. The functional similarity is real, but the mechanics differ. In Delaware, the 90% parent holds its stake in a subsidiary; the squeeze-out is effected through a merger, and dissenting stockholders receive their consideration after a structured appraisal process that can extend 12 to 24 months. In Italy, the squeeze-out right under Article 111 TUF allows the buyer to serve a notice within a defined window following the offer, and pricing is referenced to the tender offer price subject to CONSOB oversight — not to an appraisal court. That means the Italian route, once the new regulations are in place, may be faster and more cost-certain than the Delaware appraisal process, provided CONSOB does not impose a fair-value premium above the offer price.
A minority holder who refuses to tender their shares into the offer faces two possible outcomes under the new framework. If the buyer reaches 90% of voting capital, it may serve a squeeze-out notice and compulsorily acquire the residual shares at the tender offer price (or such price as CONSOB determines following its review of the pricing methodology, once secondary regulations are finalised). The minority holder cannot block the compulsory acquisition once the threshold is reached. The only recourse is to challenge the price before the competent civil court, arguing that the fair value of their shares exceeded the offer price — a remedy similar to, though procedurally distinct from, the Delaware appraisal right. If the buyer does not reach 90%, the minority remains in place. That creates a governance problem: a buyer holding, say, 85% of an Italian listed company has majority control but cannot delist, cannot squeeze out, and must continue to comply with all the transparency obligations applicable to a listed entity under TUF. The cost of that position — ongoing listed-company compliance, CONSOB filings, related-party transaction procedures — is significant. Budget a minimum of €300,000 to €500,000 per year for listed-company compliance costs for a mid-cap Italian target, and model that cost into your deal economics if the squeeze-out path is not certain.
In our files, the most common drafting error in cross-border SPAs for Italian listed targets is a condition precedent that defines "full ownership" by reference to a percentage of total share capital rather than voting capital. After D.Lgs. 47/2026, that distinction has become critical: a buyer may cross 90% of economic capital and believe squeeze-out rights have vested, while in fact a class of enhanced-voting shares held by the founder family keeps the voting capital percentage below the statutory floor. We see this mistake most often in deals where the target's articles were amended to introduce multiple-voting shares in the 12 months before the offer — precisely the window in which the TUF reform's new provisions on enhanced voting rights were under discussion. Review your target's most recent articles of association and CONSOB ownership filings before the offer launches, not after.
No. The squeeze-out right under Article 111 TUF arises only following a qualifying tender offer — either a full voluntary offer or a mandatory bid under Article 108 TUF. Reaching 90% through open-market or off-market purchases outside a tender offer does not trigger the statutory squeeze-out right. A buyer in that position would need to launch a separate offer to access the squeeze-out mechanism, which restarts the CONSOB notification and offer-period clock.
The D.Lgs. 47/2026 reform revised the TUF framework for both regulated-market issuers and growth-market issuers, though some specific provisions of the modular SME regime apply differently to companies with a market capitalisation below €1 billion. For squeeze-out purposes under Article 111 TUF, the 90% threshold applies across the board. Buyers targeting SME-listed companies should verify the applicable offer mechanics with Italian counsel before launching, because the overall TUF reform introduced specific procedural simplifications for growth-market bids that interact with the squeeze-out timetable.
The new rules apply. The transitional grandfathering in D.Lgs. 47/2026 protects only offers formally notified to CONSOB before 29 April 2026. The date of the SPA is irrelevant for this purpose. If your offer is notified on or after 29 April 2026 — even if the SPA, heads of terms, or exclusivity agreement pre-dates the reform — Article 111 TUF as amended governs the squeeze-out, and you should instruct Italian counsel to review your transaction documents for the three mis-calibration risks identified above before the CONSOB notification is filed.
HREFLANG BLOCK:
Editorial Team — Panato Law Firm Staff
