Options, rights of first refusal and rights of first offer
Three different things, regularly confused, with very different effects on a sale.
Esshaki Legal Media TeamCurrent as of April 2025
Each gives someone a preferential position in a future transfer, and each
constrains the owner differently.
Option to purchase. The holder may buy at a stated price during a stated
period, whether or not the owner wants to sell. It is the strongest right and
the most restrictive on the owner. Price mechanism, exercise notice and closing
mechanics must all be specified.
Right of first refusal. Passive until the owner receives an offer it is
prepared to accept, at which point the holder may match. It depresses
marketability, because third parties are reluctant to negotiate knowing they may
be used as a stalking horse. Drafting should address what constitutes a
triggering offer, the response period, whether the match must be on identical
terms including non-cash consideration, and what happens if the deal with the
third party changes materially.
Right of first offer. The owner must present terms to the holder before
marketing. If the holder declines, the owner may sell to anyone on terms no more
favorable than those offered, usually within a window. Sellers prefer this;
it preserves marketability.
Recording and duration. All three should be recorded or noticed to bind
successors, and all should have express termination provisions. Perpetual
rights raise rule against perpetuities issues in some states.