Exhibit B
LOCK-UP LETTER AGREEMENT
XXXXXX BROTHERS INC.
BEAR, XXXXXXX & CO. INC.
As Representatives of the several
Underwriters,
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that you and certain other firms (the
"UNDERWRITERS") propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") providing for the purchase by the Underwriters of
shares (the "SHARES") of Common Stock, par value $0.001 per share (the "COMMON
STOCK"), of Cogent Communications Group, Inc., a Delaware corporation (the
"COMPANY"), and that the Underwriters propose to reoffer the Shares to the
public (the "OFFERING").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of Xxxxxx
Brothers Inc. and Bear, Xxxxxxx & Co. Inc., on behalf of the Underwriters, the
undersigned will not, directly or indirectly, (1) offer for sale, sell, pledge,
or otherwise dispose of (or enter into any transaction or device that is
designed to, or could be expected to, result in the disposition by any person at
any time in the future of) any shares of Common Stock (including, without
limitation, shares of Common Stock that may be deemed to be beneficially owned
by the undersigned in accordance with the rules and regulations of the
Securities and Exchange Commission and shares of Common Stock that may be issued
upon exercise of any option or warrant) or securities convertible into or
exchangeable for Common Stock (other than the Shares in the Offering), (2) enter
into any swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of ownership of shares
of Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or other securities, in cash
or otherwise, (3) make any demand for or exercise any right or file or cause to
be filed a registration statement, including any amendments, with respect to the
registration of any shares of Common Stock or securities convertible,
exercisable or exchangeable into Common Stock or any other securities of the
Company or (4) publicly disclose the intention to do any of the foregoing, in
each case without the prior written consent of Xxxxxx Brothers Inc. and Bear,
Xxxxxxx & Co. Inc., on behalf of the Underwriters for a period commencing on the
date hereof and ending with respect to such shares or securities (the "BASE
SHARES") so indicated, as follows (all such periods together being the "LOCK-UP
PERIOD"): (A) 50% of the Base Shares after August 31, 2006; and (B) the
remaining 50% of the Base Shares after November 29, 2006. The foregoing sentence
shall not apply to bona fide gifts or other dispositions of Common Stock, in
each case that are made exclusively between and among the undersigned or members
of the undersigned's family, or affiliates of the undersigned, including its
partners (if a partnership) or members (if a limited liability company);
provided that it shall be a condition to any such transfer that (i) the
transferee/donee agrees to be bound by the terms of this Lock-Up Letter
Agreement (including, without limitation, the restrictions set forth in the
preceding sentence) to the same extent as if the transferee/donee were a party
hereto, (ii) no filing by any party (donor, donee, transferor or transferee)
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
shall be required or shall be voluntarily made in connection with such transfer
or distribution (other than a filing on a Form 5, Schedule 13D or Schedule 13G
(or 13D-A or 13G-A) made after the expiration of the Lock-Up Period), (iii) each
party (donor, donee, transferor or transferee) shall not be required by law
(including without limitation the disclosure requirements of the Securities Act
of 1933, as amended, and the Exchange Act) to make, and shall agree to not
voluntarily make, any public announcement of the transfer or disposition, (iv)
any such transfer shall not involve a disposition for value, and (v) the
undersigned notifies Xxxxxx Brothers Inc. at least two business days prior to
the proposed transfer or disposition.
Notwithstanding the foregoing paragraph, if (1) during the last 17 days
of either of the two Lock-Up Periods, the Company issues an earnings release or
material news or a material event relating to the Company occurs or (2) prior to
the expiration of either of the two Lock-Up Periods, the Company announces that
it will release earnings results during the 16-day period beginning on the last
day of any such Lock-Up Period, then the restrictions imposed in the preceding
paragraph shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the announcement of the
material news or the occurrence of the material event, unless Xxxxxx Brothers
Inc. and Bear, Xxxxxxx & Co. Inc., on behalf of the Underwriters, waive such
extension in writing; provided, however that in no event shall any such
extension of the Lock-Up Period last beyond the 34th day following the
originally contemplated end of such period; and provided, further, that this
sentence shall not apply if the Underwriters publish or distribute any research
regarding the earnings results, material news or material event, and such
research is compliant under Rule 139 of the Securities Act of 1933, as amended,
and the Company's securities are actively traded as defined in Rule 101(c)(1) of
Regulation M under the Securities Exchange Act of 1934, as amended. The
undersigned hereby further agrees that, prior to engaging in any transaction or
taking any other action that is subject to the terms of this Lock-Up Letter
Agreement during the period from the date of this Lock-Up Letter Agreement to
and including the 34th day following the expiration of the Lock-Up Period, it
will give notice thereof to the Company and will not consummate such transaction
or take any such action unless it has received written confirmation from the
Company that the Lock-Up Period (as such may have been extended pursuant to this
paragraph) has expired.
In furtherance of the foregoing, the Company and its transfer agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this Lock-Up Letter Agreement.
It is understood that, if the Company notifies the Underwriters that it
does not intend to proceed with the Offering, if the Underwriting Agreement does
not become effective by June 30, 2006, or if the Underwriting Agreement (other
than the provisions thereof which survive termination) shall terminate or be
2
terminated prior to payment for and delivery of the Shares, then the undersigned
will be released from its obligations under this Lock-Up Letter Agreement. The
undersigned understands that the Company and the Underwriters will proceed with
the Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will only be made pursuant to
an Underwriting Agreement, the terms of which are subject to negotiation between
the Company, the Selling Stockholders named therein and the Underwriters.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Letter Agreement and that,
upon request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned shall
be binding upon the heirs, personal representatives, successors and assigns of
the undersigned.
[Signature Page Follows]
3
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Letter Agreement and that,
upon request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned shall
be binding upon the heirs, personal representatives, successors and assigns of
the undersigned.
Very truly yours,
NATIO VIE DEVELOPPEMENT3, FCPR
By: /s/ Xxxxxxx d'Hotelans
--------------------------------
Name: Xxxxxxx d'Hotelans
Title: Directeur Associe
Dated: May 18, 2006
4
