ROFO vs. ROFR: Key Considerations for Shareholder Agreements

  • Written Written by Ali Nasir Kidwai 23 May 2024 | 4 min read
  • Editor's Note :

    Understand the nuances of Right of First Offer (ROFO) and Right of First Refusal (ROFR). Explore its significance for both investors and business owners. This blog dives into the key distinctions, benefits, and strategic implications of these contractual rights. Whether you're drafting a new agreement or reviewing an existing one, this write-up will provide you with the essential knowledge to make informed decisions and safeguard your interests


The success of an organization is not solely determined by its product or service; instead, it is often intricately linked to the harmony among its shareholders. A well-drafted shareholders' agreement can help prevent conflict and ensure the company's smooth operation.

In the present scenario, investing in a company comes with risks and uncertainties. To eliminate these risks and protect the interests of investors, shareholder agreements often incorporate vital provisions such as the Right of First Offer (ROFO) and Right of First Refusal (ROFR). These stand out as essential mechanisms for maintaining control over the ownership and transfer of shares.

So, without further ado, let's explore the differentiation between ROFO and ROFR and understand how it works and how shareholders can navigate the decision-making process effectively.

The Right of First Offer (ROFO) gives existing shareholders priority to buy shares before they are offered to external buyers. Here's how it works: when a selling shareholder intends to sell their stakes, they must first offer them to existing shareholders. Only if the non-selling shareholders decline the offer can the selling shareholder, then seek third-party offers and proceed to sell, but only on terms that are favorable to the offer initially presented or negotiated and agreed upon with the non-selling shareholders.

what is a right of first offer


Crucial features of ROFO:

Considerations of ROFO
Drawbacks of ROFR
Maintains control within the existing stakeholder group: ROFO provides existing shareholders to maintain ownership focusing on exercising their purchase rights.
Can limit selling shareholder's options: The selling shareholder is prohibited from actively pursuing the highest possible market offer.
Protects existing shareholders: ROFO ensures fairness and price consistency by prohibiting the selling shareholder from offering better terms to outside buyers than those provided to the non-selling shareholders.
May lead to delays in sales: Negotiations with existing shareholders can take time, potentially impeding the selling shareholders' exit strategy.
Potential benefits for selling shareholders: ROFO may incentivize the seller to offer a higher price to the existing shareholders, knowing they have the first option.
Potential for conflicts: If multiple existing shareholders are interested in buying, disagreements over price or allocation can arise.

Understanding Right of First Refusal (ROFR)

The Right of First Refusal (ROFR) grants non-selling shareholders the ability to match an offer received by a selling shareholder from an external buyer. This process works as follows: once the selling shareholder has obtained an offer from a third party, they are required to present this offer to the existing shareholders. The non-selling shareholders then have the option to accept the offer and buy the shares under the same terms as the third-party offer.

right of first refusal

Key features of ROFR

ROFR- Pros
ROFR- Cons
Provides flexibility for selling shareholders: The selling shareholder enjoys greater freedom to negotiate and secure the best possible sales terms.
Limited Negotiation Freedom: The seller's negotiation flexibility is restricted because they must present any offer from a third party to existing shareholders before initiating a sale to a third party. This limitation may obstruct the seller's capability to secure the most favorable terms for the share sale.
Faster sales process: ROFR avoids the potential delays associated with negotiations with existing shareholders in an ROFO scenario.
Sale Process Delays: The obligation to provide shares to existing stakeholders before exercising third-party offers can extend the sale process, which may not align with the seller's goals for a rapid liquidation of their investment  
Diminishes the risk of conflict among existing stakeholders: Since present shareholders only possess matching rights, it decreases the likelihood of issues over allocation or price.
Selling shareholders may get a lesser offer: ROFR pulls out the incentive for the buyer to provide a higher price to existing stakeholders as they induce matching rights.

Difference Between Right of First Offer vs Right of First Refusal

ROFO Vs ROFR are typically contractual obligations commonly found in numerous agreements. Let's dive into the distinctions between them:

Contractual Obligation
Advantages to seller
Disadvantages to seller
Advantages to right-holder
Disadvantages to right-holder
Can accept or reject the offer. The selling process is made more accessible—a reduction in marketing costs.
Sale price restrictions if the right-holder is uninterested or the seller rejects the offer. Decreased scope of negotiations.
Get a jump on the competition before other potential buyers.
The seller has the right to reject or accept the offer. The seller can plan to sell at any time.
Reduced marketing costs. Increased chances of making higher profits.
If the owner intends to sell the asset, they should offer it to the ROFR holder first.
If the right-holder is interested, they can procure the asset free of competition (guaranteed purchase).
The seller will make the offer at any time.

Choosing Between ROFO vs ROFR:

between ROFO vs ROFR


Choosing between ROFO Vs ROFR completely depends on numerous facets, involving the selling shareholder's goals and position. For instance, if a selling shareholder is a minority shareholder and lacks information or expertise to gauge their shares' fair market value accurately, an ROFO can be beneficial. Conversely, if the selling shareholder has a strong network, they can quickly secure a good offer from a third party. In such scenarios, ROFR is preferred, as it allows them to present that offer to present stakeholders, who are authorized to watch or decline.

In easy terms, below are the factors that can help in decision-making:

Desired ownership control: If having control within the present group is a top priority, ROFO offers stronger guarantees.

Sale Process Efficiency: ROF can help accelerate the sales process when compared to ROFR, as the selling shareholder can save ample time by bypassing negotiations and appending offers from third parties.

Risk tolerance for potential conflicts: If conflict resolution is a concern, ROFR may be preferable due to its more straightforward structure.

Final Thoughts

Henceforth, the comparison between ROFO vs ROFR acts as a focal point in cushioning stakeholders' interests and maintaining the organization's ownership stable. The decision on which mechanism to include in a shareholders' agreement depends on various factors such as the nature of the business, shareholder dynamics, long-term goals, and legal considerations.

By carefully assessing these factors and seeking professional advice from a platform like Vega Equity is the need of the hour, where shareholders can make informed decisions that best suit the requirements of their organization.

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