-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WurEtgMX34l/4rXbRw1f0P8WF2zpF1VftI5mqbDwRA1ICEFuNeaQ149pM2uuQ2nr feIXFp5kv4QMlg15BTp4sQ== 0001193805-08-001413.txt : 20080528 0001193805-08-001413.hdr.sgml : 20080528 20080528173603 ACCESSION NUMBER: 0001193805-08-001413 CONFORMED SUBMISSION TYPE: SC TO-T PUBLIC DOCUMENT COUNT: 13 FILED AS OF DATE: 20080528 DATE AS OF CHANGE: 20080528 GROUP MEMBERS: ALEXANDRE VON FURSTENBERG GROUP MEMBERS: ARROW ADVISORS LLC GROUP MEMBERS: ARROW CAPITAL MANAGMENT LLC GROUP MEMBERS: ARROW MASTERS LP GROUP MEMBERS: ARROW OFFSHORE ADVISORS LLC GROUP MEMBERS: ARROW OFFSHORE, LTD. GROUP MEMBERS: ARROW PARTNERS LP GROUP MEMBERS: MAL SERURE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: STEWART W P & CO LTD CENTRAL INDEX KEY: 0000750443 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 980201080 STATE OF INCORPORATION: X0 FILING VALUES: FORM TYPE: SC TO-T SEC ACT: 1934 Act SEC FILE NUMBER: 005-78087 FILM NUMBER: 08864431 BUSINESS ADDRESS: STREET 1: TRINITY HALL 43 CEDAR AVE PO BOX 2905 STREET 2: HAMILTON HM LX CITY: BERMUDA STATE: X0 ZIP: 10022 BUSINESS PHONE: 4412958585 MAIL ADDRESS: STREET 1: C/O W P STEWART & CO INC STREET 2: 527 MADISON AVE CITY: NEW YORK STATE: NY ZIP: 10022 FORMER COMPANY: FORMER CONFORMED NAME: STEWART W P & CO INC DATE OF NAME CHANGE: 19980320 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ARROW PARTNERS LP CENTRAL INDEX KEY: 0001226544 IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC TO-T BUSINESS ADDRESS: STREET 1: 499 PARK AVE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 212-243-7338 MAIL ADDRESS: STREET 1: 499 PARK AVE CITY: NEW YORK STATE: NY ZIP: 10022 SC TO-T 1 e603876_sctot-arrow.txt SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE TO Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934 ___________ W.P. Stewart & Co., Ltd. ---------------------------------- (Name of Subject Company (Issuer)) Arrow Masters LP, Arrow Partners LP and Arrow Offshore, Ltd., Arrow Advisors LLC, Arrow Offshore Advisors, LLC, Arrow Capital Management LLC, Alexandre von Furstenberg and Mal Serure ------------------------------------ (Names of Filing Persons) (Offerors) Common Stock, par value $0.001 per share ---------------------------------------- (Title of Class of Securities) G84922106 ------------------------------------- (CUSIP Number of Class of Securities) ___________ Mal Serure David J. Heymann c/o Arrow Advisors LLC Post Heymann & Koffler LLP 499 Park Avenue Two Jericho Plaza, Wing A, Suite 211 New York, New York 10022 Jericho, New York 11753 Tel: 212-243-7338 Tel: 516-681-3636 Fax: 212-243-2195 Fax: 516-433-2777 (Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons) Calculation of Filing Fee Transaction valuation* Amount of Filing Fee - ---------------------- -------------------- $31,843,200 $1,252 * For purposes of the filing fee only assumes the purchase of 19,902,000 shares at a purchase price of $1.60 per share in cash. |_| Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration number, or the Form or Schedule and the date of its filing. Amount Previously Paid: ____________________ Form or Registration No.: ____________________ Filing Party: ____________________ Date Filed: ____________________ |_| Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: |X| third-party tender offer subject to Rule 14d-1. |_| issuer tender offer subject to Rule 13e-4. |_| going-private transaction subject to Rule 13e-3. |_| amendment to Schedule 13D under Rule 13d-2. Check the following box if the filing is a final amendment reporting the results of the tender offer: |_| 2 TENDER OFFER This Tender Offer Statement on Schedule TO relates to the offer (the "Offer") by Arrow Masters LP, a Delaware limited partnership ("Masters"), Arrow Partners LP, a Delaware limited partnership ("Partners"), and Arrow Offshore, Ltd., a Cayman Island exempted company ("Offshore", and collectively with Masters and Partners, the "Purchaser") to purchase up to 19,902,000 common shares (the "Shares") in W.P. Stewart & Co., Ltd. (the "Corporation"), the subject company, par value $0.001 per share, at a purchase price equal to $1.60 per Share, less the amount of any dividends declared from and after the date hereof (the "Offer Date"), upon the terms and subject to the conditions set forth in the Offer to Purchase dated May 28, 2008 (the "Offer to Purchase") and the related Letter of Transmittal, copies of which are attached hereto as Exhibits (a)(1) and (a)(2), respectively. The Offer will expire at 5:00 p.m. eastern time on July 9, 2008 or such other date to which this Offer may be extended (the "Expiration Date"). Arrow Advisors LLC ("Advisors"), Arrow Offshore Advisors, LLC ("Offshore Advisors"), Arrow Capital Management LLC ("Management"), Alexandre von Furstenberg ("von Furstenberg") and Mal Serure ("Serure") are named as offerors herein because (i) Advisors is the sole general partner of Masters and Partners, (ii) Offshore Advisors is the co-investment advisor of Offshore, (iii) Management is the investment advisor of Masters and Partners and the co-investment advisor of Offshore, and (iv) von Furstenberg and Serure are the sole members of Advisors, Offshore Advisors and Management, but are otherwise not participating in the offer described in this schedule. In the event of a price reduction resulting from a Corporation dividend declared from and after the date hereof, the Purchaser will file an amendment to this Schedule TO reflecting such reduction and will, to the extent necessary, extend the Expiration Date to assure there is a minimum ten business day period following the amendment before the Offer expires. Tender of Shares will include the tender of any and all securities into which the Shares may be converted and any securities distributed with respect to the Shares from and after the Offer Date. As of May 20, 2008 the Corporation had approximately 50,351,566 shares outstanding held by approximately 163 shareholders of record. Neither the Purchaser nor any of their affiliates own any Shares. The 19,902,000 Shares subject to the Offer constitute 39.5% of the outstanding Shares. Consummation of the Offer, if all Shares sought are tendered, would require payment by the Purchaser of up to $31,843,200 in aggregate purchase price. The Purchaser has sufficient current working capital to fund the purchase price and pay all expenses of the offer. The address of the Corporation's principal executive offices is Trinity Hall, 43 Ceder Avenue, Hamilton, HMLX, Bermuda, and its phone number is (441) 295-8585. The information in the Offer to Purchase, including all schedules thereto, is hereby expressly incorporated herein by reference in response to Items 1 through 11 of this Statement. 3 Item 12. Exhibits (a)(1) Offer to Purchase, dated May 28, 2008. (a)(2) Form of Letter of Transmittal. (a)(3) Form of Notice of Guaranteed Delivery. (a)(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. (a)(5) Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. (a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (a)(7) Form of summary advertisement published in Investor's Business Daily on May 28, 2008. (a)(8) Text of press release issued by the Company, dated May 20, 2008 (incorporated herein by reference to the Company's Form 6-K dated May 21, 2008). (b) Not applicable (d)(1) Investment Agreement between the Company and the Purchaser, dated as of May 20, 2008. (d)(2) Registration Rights Agreement the Company and the Purchaser, dated as of May 20, 2008. (d)(3) Agreement between the Company, the Purchaser and William Stewart, dated May 20, 2008. (d)(4) Agreement between the Company, the Purchaser and Robert Kahn, dated May 20, 2008. (d)(5) Confidentiality Agreement between the Company and Arrow Capital Management, LLC, dated April 16, 2008. (g) None (h) Not applicable Item 13. Information Required by Schedule 13E-3. Not Applicable. 4 SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. ARROW MASTERS LP By: Arrow Advisors LLC General Partner By: /s/ Mal Serure --------------------------- Mal Serure Co-Managing Member ARROW PARTNERS LP By: Arrow Advisors LLC General Partner By: /s/ Mal Serure --------------------------- Mal Serure Co-Managing Member ARROW OFFSHORE, LTD. By: /s/ Mal Serure ------------------------------- Mal Serure Director ARROW ADVISORS LLC By: /s/ Mal Serure ------------------------------- Mal Serure Co-Managing Member ARROW OFFSHORE ADVISORS LLC By: /s/ Mal Serure ------------------------------- Mal Serure Co-Managing Member ARROW CAPITAL MANAGMENT LLC By: /s/ Mal Serure ------------------------------- Mal Serure Co-Managing Member /s/ Mal Serure ------------------------------- Mal Serure /s/ Alexandre von Furstenberg ------------------------------- Alexandre von Furstenberg Dated: May 28, 2008 5 EXHIBIT INDEX Exhibit No. Description (a)(1) Offer to Purchase, dated May 28, 2008.* (a)(2) Form of Letter of Transmittal.* (a)(3) Form of Notice of Guaranteed Delivery.* (a)(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* (a)(5) Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* (a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.* (a)(7) Form of summary advertisement published in Investor's Business Daily on May 28, 2008.* (a)(8) Text of press release issued by the Company, dated May 20, 2008 (incorporated herein by reference to the Company's Form 6-K dated May 21, 2008). (d)(1) Investment Agreement between the Company and the Purchaser, dated as of May 20, 2008.* (d)(2) Registration Rights Agreement between the Company and the Purchaser, dated as of May 20, 2008.* (d)(3) Agreement between the Company, the Purchaser and William Stewart, dated May 20, 2008.* (d)(4) Agreement between the Company, the Purchaser and Robert Kahn, dated May 20, 2008.* (d)(5) Confidentiality Agreement between the Company and Arrow Capital Management, LLC, dated April 16, 2008. (g) None (h) Not applicable - ---------- * Filed herewith. 6 EX-99.(A)(1) 2 e603876_ex99-a1.txt Offer to Purchase for Cash Up to 19,902,000 Common Shares of W.P. Stewart & Co., Ltd. at $1.60 Net Per Share by Arrow Masters LP, Arrow Partners LP and Arrow Offshore, Ltd. THE OFFER, WITHDRAWAL RIGHTS AND PRORATION PERIOD WILL EXPIRE AT 5:00 P.M., EASTERN TIME, ON WEDNESDAY, JULY 9, 2008 UNLESS THE OFFER IS EXTENDED (the "Expiration Date"). Arrow Masters LP, Arrow Partners LP and Arrow Offshore, Ltd. (collectively "Arrow") are offering to purchase up to 19,902,000 common shares, par value $0.001 per share, of W.P. Stewart & Co., Ltd., a Bermuda exempted company (the "Company"), at a purchase price of $1.60 per share (the "Offer Price"), in cash, without interest, less the per share amount of distributions, if any, declared and payable by the Company to common shareholders from and after the date of this offer until Arrow becomes the record holder of all shares acquired in the Offer, upon the terms and subject to the conditions set forth in this Offer to Purchase (this "Offer to Purchase") and in the related Letter of Transmittal, as each may be supplemented or amended from time to time (which together constitute the "Offer"). The 19,902,000 shares being sought in this Offer represent approximately 39.5% of the Company's current outstanding common shares. Questions and requests for assistance or for additional copies of this Offer to Purchase, the letter of transmittal and other required documents may be directed to MacKenzie Partners, Inc., information agent, at (800) 322-2885. THIS OFFER IS BEING MADE UNDER AN INVESTMENT AGREEMENT DATED AS OF MAY 20, 2008 (THE "INVESTMENT AGREEMENT") BETWEEN ARROW AND THE COMPANY. PURSUANT TO THE INVESTMENT AGREEMENT, FOLLOWING THE EXPIRATION OF THIS OFFER, ARROW WILL PURCHASE FROM THE COMPANY, AT THE OFFER PRICE, 5,010,000 NEWLY ISSUED SHARES OF THE COMPANY. IN ADDITION, IF AFTER THE ACQUISITION BY ARROW OF SHARES IN THIS OFFER AND THE 5,010,000 SHARES ARROW IS COMMITED TO PURCHASE FROM THE COMPANY, ARROW DOES NOT HOLD AT LEAST 13,840,000 SHARES OF THE COMPANY, ARROW WILL HAVE THE OPTION TO PURCHASE FROM THE COMPANY, AT THE OFFER PRICE, UP TO 2,430,000 ADDITIONAL NEWLY ISSUED COMMON SHARES OF THE COMPANY. FURTHER, TWO SIGNIFICANT SHAREHOLDERS HAVE AGREED TO TENDER, SUBJECT TO CERTAIN CONDITIONS, A TOTAL OF 2,400,000 SHARES LESS ANY SHARES TENDERED BY OTHER SHAREHOLDERS. THE COMPANY'S BOARD OF DIRECTORS UNANIMOUSLY (WITH ONE DIRECTOR ABSTAINING) AUTHORIZED THE INVESTMENT AGREEMENT AND DETERMINED THAT THE INVESTMENT AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY ARE IN THE BEST INTEREST OF THE COMPANY'S SHAREHOLDERS AND THAT THE OFFER PRICE IS FAIR TO UNAFFILIATED SHAREHOLDERS. HOWEVER, THE BOARD OF DIRECTORS HAS DETERMINED TO REMAIN NEUTRAL AND IS TAKING NO POSITION AS TO WHETHER SHAREHOLDERS SHOULD TENDER THEIR SHARES IN THE OFFER. THIS OFFER TO PURCHASE IS NOT CONDITIONED UPON ANY MINIMUM NUMBER OF SHARES BEING TENDERED. IF MORE THAN 19,902,000 SHARES ARE VALIDLY TENDERED AND NOT WITHDRAWN, ARROW WILL ACCEPT FOR PURCHASE 19,902,000 SHARES FROM TENDERING SHAREHOLDERS ON A PRO RATA BASIS, SUBJECT TO THE TERMS AND CONDITIONS HEREIN. A SHAREHOLDER MAY TENDER ANY OR ALL SHARES OWNED BY SUCH SHAREHOLDER. The obligation of Arrow to accept for payment shares tendered pursuant to the Offer is subject to certain conditions. Arrow expressly reserves the right to waive any such condition, to increase the price per share payable in the Offer or to make any other changes in the terms and conditions of the Offer, provided that any such change that would be adverse to the Company or its shareholders in any significant respect will require the prior written consent of the Company. Notice of any extension, termination or amendment will promptly be disseminated to shareholders in a manner reasonably designed to inform shareholders of such change in compliance with Rule 14d-4(c) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). In the case of an extension of the Offer, such extension will be followed by a press release or public announcement which will be issued no later than 9:00 a.m., Eastern Time, on the next business day after the scheduled Expiration Date, in accordance with Rule 14e-1(d) under the Exchange Act. As used in this Offer to Purchase, "business day" means any day other than a Saturday, Sunday or U.S. federal holiday, and consists of the time period from 12:01 a.m. through 12:00 midnight, Eastern Time. IMPORTANT Any shareholder desiring to tender all or any portion of that shareholder's shares should either (1) complete and sign the letter of transmittal, or a facsimile thereof, in accordance with the instructions to the letter of transmittal, have that shareholder's signature thereon guaranteed if so required, mail or deliver the letter of transmittal, or facsimile, or, in the case of a book-entry transfer, an agent's message (as defined therein), and any other required documents to the Company, and either deliver the certificates for those shares to the Company along with the letter of transmittal, or facsimile, or deliver those shares in accordance with the procedure for book-entry transfer or (2) request that shareholder's broker, dealer, bank, trust company or other shareholder nominee effect the transaction for that shareholder. A shareholder having shares registered in the name of a broker, dealer, bank, trust company or other nominee must contact that person if that shareholder desires to tender those shares. If a shareholder desires to tender shares and that shareholder's certificates for shares are not immediately available or the procedure for book-entry transfer cannot be completed on a timely basis, or time will not permit all required documents to reach the depositary prior to the expiration date (as defined herein), that shareholder's tender may be effected by following the procedure for guaranteed delivery set forth in this Offer to Purchase. Questions and requests for assistance or for additional copies of this Offer to Purchase, the letter of transmittal and other required documents may be directed to MacKenzie Partners, Inc., information agent, at the address and telephone number set forth on the back cover of this Offer to Purchase. ____________________ NO PERSON HAS BEEN AUTHORIZED TO MAKE ANY RECOMMENDATION OR ANY REPRESENTATION ON BEHALF OF ARROW OR TO PROVIDE ANY INFORMATION OTHER THAN AS CONTAINED HEREIN OR IN THE LETTER OF TRANSMITTAL. NO SUCH RECOMMENDATION, INFORMATION OR REPRESENTATION MAY BE RELIED UPON AS HAVING BEEN AUTHORIZED. ____________________ The Company is subject to the information and reporting requirements of the Exchange Act and in accordance therewith is required to file reports and other information with the Securities and Exchange Commission (the "Commission") relating to its business, financial condition and other matters. Such reports and other information are available on the Commission's electronic data gathering and retrieval (EDGAR) system, at its internet website (www.sec.gov), and may be inspected at the public reference facilities maintained by the Commission at 100 F Street, NE, Washington, D.C. 20549. Copies of such material can also be obtained from the Public Reference Room of the Commission in Washington, D.C. at prescribed rates. Arrow has filed with the Commission a Tender Offer Statement on Schedule TO pursuant to Rule 14d-3 of the General Rules and Regulations under the Exchange Act, furnishing certain additional information with respect to the Offer. Such statement and any amendments thereto, including exhibits, may be inspected and copies may be obtained from the offices of the Commission in the manner specified above. TABLE OF CONTENTS
Page ---- SUMMARY TERM SHEET.........................................................................1 INTRODUCTION...............................................................................4 THE TENDER OFFER...........................................................................5 Section 1. Terms of the Offer; Proration................................................5 Section 2. Procedure for Tendering Shares...............................................7 Section 3. Withdrawal Rights...........................................................10 Section 4. Acceptance for Payment and Payment..........................................11 Section 5. Certain U.S. Federal Income Tax Consequences................................12 Section 6. Price Range of the Shares...................................................13 Section 7. Effect of the Offer.........................................................13 Section 8. Information Concerning W.P. Stewart & Co., Ltd..............................14 Section 9. Information Concerning Arrow and Its Affiliates.............................15 Section 10. Source and Amount of Funds..................................................15 Section 11. Contacts and Transactions With the Company; Background of the Offer.........16 Section 12. Purpose of the Offer; Plans For the Company.................................19 Section 13. Conditions to the Offer.....................................................19 Section 14. Legal Matters...............................................................20 Section 15. Fees and Expenses...........................................................20 Section 16. Miscellaneous...............................................................21
SCHEDULE I INFORMATION REGARDING ARROW'S PRINCIPALS (i) SUMMARY TERM SHEET Arrow Masters LP, Arrow Partners LP and Arrow Offshore, Ltd., which we refer to collectively as "Arrow," "we" or "us," are offering to purchase up to 19,902,000 shares of common stock of W.P. Stewart & Co., Ltd., which we refer to as "W.P Stewart" or the "Company", for $1.60 per share in cash, which we refer to as the "Offer Price" on the terms and subject to the conditions set forth in this Offer to Purchase and in the related Letter of Transmittal, as each may be supplemented or amended from time to time, which we collectively refer to as the "Offer". The following are some questions you, as a shareholder of W.P. Stewart, may have and answers to those questions. We urge you to read the remainder of this Offer to Purchase and the accompanying letter of transmittal carefully, because the information in this summary is not complete and the remainder of this Offer to Purchase and the letter of transmittal contain additional important information. As of May 20, 2008, we believe the Company had approximately 50,351,566 shares outstanding held by approximately 163 shareholders of record. Neither we nor our affiliates currently beneficially own any shares. The 19,902,000 shares sought in the Offer constitute approximately 39.5% of the outstanding shares. Section 5 of this Offer to Purchase describes certain United States federal income tax consequences of a sale of shares under the Offer. Who Is Offering To Buy My Shares? Each of Arrow Masters LP, Arrow Partners LP and Arrow Offshore, Ltd. is offering to purchase your shares of W.P. Stewart pursuant to the terms of an Investment Agreement that we entered into with W.P. Stewart, which we refer to as the "Investment Agreement", pursuant to which we are making a significant investment in W.P. Stewart. None of Arrow Masters LP, Arrow Partners LP and Arrow Offshore, Ltd. is affiliated with W.P. Stewart. The general partner of each of Arrow Masters LP and Arrow Partners LP is Arrow Advisors LLC, a Delaware limited liability company, and Arrow Capital Management, LLC, a Delaware limited liability company, is the sole investment advisor of each of Arrow Masters LP and Arrow Partners LP, and the co-investment advisor with Arrow Offshore Advisors, LLC, a Delaware limited liability company, of Arrow Offshore, Ltd. We refer to Arrow Advisors LLC, Arrow Capital Management LLC and Arrow Offshore Advisors, LLC herein collectively as the "Arrow Advisors". Each of the Arrow Advisors is owned and controlled by Alexandre von Furstenberg and Mal Serure. See Section 9 of this Offer to Purchase for additional information about us and the Arrow Advisors. What Shares Are You Seeking in This Offer? We are offering to purchase up to 19,902,000 shares of W.P. Stewart, representing approximately 39.5% of the current total outstanding shares. See Section 1 of this Offer to Purchase for the specific terms of our offer. What Happens if Shareholders Tender More Shares than You are Willing to Buy? If shareholders tender more than 19,902,000 shares, we will accept 19,902,000 shares for payment on a pro-rata basis (with adjustments to avoid purchases of fractional shares) based upon the number of shares validly tendered and not withdrawn by the expiration date by each shareholder. If we prorate, the shares which are not accepted for purchase will be returned to you. For more information regarding proration, see Section 1 of this Offer to Purchase. If You Prorate, When Will I Know How Many Shares Will Actually Be Accepted For Tender and Payment? If proration of tendered shares is required, because of the difficulty of determining the precise number of shares to be purchased from each tendering shareholder, we do not expect to announce the final results of proration or pay for any shares until at least five New York Stock Exchange trading days after the expiration date. Preliminary results of proration will be announced by press release as promptly as practicable. You may obtain such preliminary information from the information agent at its telephone number set forth on the back cover of this Offer to Purchase. How Much Are You Offering To Pay, What Is the Form of Payment and Will I Have To Pay Any Fees or Commissions? We are offering to pay $1.60 per share, net to you, in cash (subject to applicable withholding of United States federal, state and local taxes), less the per share amount of distributions, if any, declared and payable by the Company to common shareholders from and after the date of this offer until we become the record holder of all shares acquired in the Offer. If you are the record owner of your shares and you tender your shares to us in the Offer, you will not have to pay brokerage fees or similar expenses. If you own your shares through a broker or other nominee and that person tenders your shares on your behalf, that person may charge you a fee for doing so. You should consult your broker or other nominee to determine whether any charges will apply. Do You Have the Financial Resources To Make Payment? If 19,902,000 shares are purchased in the Offer, the aggregate purchase price for the shares will be $31,843,200. In addition, we have committed to purchase from the Company following completion of the Offer 5,010,000 newly issued shares for an aggregate purchase price of $8,016,000. We have adequate funds available to us to pay tendering shareholders for shares tendered and to pay the Company for the newly issued shares, and the purchase of such shares is not conditioned on our obtaining any financing. Is Your Financial Condition Material to My Decision? We do not believe that our financial condition is material to your decision as our Offer Price will be in cash, our Offer is not conditioned on our obtaining financing and our total assets aggregate approximately $600 million and we have over $200 million available for investment. See Section 9 of this Offer to Purchase for additional information about us. Why Are You Making the Offer? We are making the Offer in order to acquire a significant stake in the Company and with a view to a return on our investment. Pursuant to the terms of the Investment Agreement, we have agreed to refrain from taking certain actions with respect to the Company which are described in Section 11. Investment Agreement-Standstill of this Offer to Purchase. See Section 12 of this Offer to Purchase for additional information on our future plans with respect to the Company. How Long Do I Have To Decide Whether To Tender in the Offer? You will have at least until 5:00 p.m., Eastern Time on July 9, 2008 to decide whether to tender your shares in the Offer. If you cannot deliver everything that we require in order to make a valid tender by that time, you may be able to use a guaranteed delivery procedure, which we discuss in Sections 1 and 2 of this Offer to Purchase. Can the Offer Be Extended and Under What Circumstances? Yes. We may extend the Offer, in our discretion. If we extend the Offer, we will inform Computershare, the depositary for the Offer, of that fact and will make a public announcement of the extension, by not later 9:00 a.m., Eastern Time, on the business day after the day on which the Offer was scheduled to expire. See Section 1 of this Offer to Purchase for information relating to an extension of the Offer and the definition of "business day." Is the Consummation of the Offer Conditioned on a Minimum Number of Shares Being Tendered? There are no conditions to the Offer based on minimum shares tendered. However, two significant shareholders have agreed to tender, subject to certain conditions, a total of 2,400,000 shares less any shares tendered by other shareholders. See Item 11. Principal Shareholder Agreements to this Offer to Purchase for more information pertaining to these agreements. 2 What Are the Most Important Conditions to the Offer? There are no conditions to the Offer based on minimum shares tendered, the availability of financing or otherwise determined by the success of the Offer. However, we may not be obligated to purchase any shares in the event certain specified conditions occur, such as legal or government actions which would prohibit the purchase. See Section 13 of this Offer to Purchase for more information pertaining to conditions to the Offer. How Do I Tender My Shares? To tender shares, you must deliver the certificates representing your shares, together with a completed letter of transmittal, or facsimile thereof, and any other documents required, to Computershare, the depositary for the Offer, not later than the time the Offer expires. If your shares are held in street name, the shares can be tendered only by your nominee through The Depository Trust Company. If you cannot deliver something that is required by the expiration of the Offer, you may still participate in the Offer by having a broker, bank or other fiduciary that is a member of the Securities Transfer Agents Medallion Program or another eligible institution guarantee that the depositary will receive the missing items within a period of three trading days. The depositary must receive the missing items within that period for the tender to be valid. See Section 2 of this Offer to Purchase for more information pertaining to the procedure for tendering shares. Until What Time Can I Withdraw Previously Tendered Shares? You can withdraw shares at any time until the Offer has expired and, under certain limited circumstances, after expiration of the Offer. See Section 3 of this Offer to Purchase for more information on your withdrawal rights. How Do I Withdraw Previously Tendered Shares? To withdraw shares, you must deliver a written notice of withdrawal with the required information to the depositary while you still have the right to withdraw the shares. If you have tendered your shares by giving instructions to a broker or nominee, you must instruct that person to arrange for the withdrawal of your shares. See Section 3 of this Offer to Purchase for more information on your withdrawal rights. If I Decide Not to Tender, How Will the Offer Affect My Shares? If you decide not to tender your shares, you will still own the same number of shares of the Company. Pursuant to the terms of the Investment Agreement, the Company has agreed that for a period of one year from the Expiration Date the shares will either remain listed on the New York Stock Exchange, or if continued listing on the New York Stock Exchange is impracticable, the Company will seek to list the shares on the American Stock Exchange or NASDAQ. Accordingly, we expect that the Company will continue to be a public company for at least one year following the Offer. However, our purchase of shares under the Offer will likely significantly reduce the number of holders of shares and the number of shares that might otherwise trade publicly and could adversely affect the liquidity and market value of the remaining shares the public holds. In addition, we have agreed in the Investment Agreement to purchase following the expiration of the Offer 5,010,000 newly issued shares from the Company and have an option to acquire up to 2,430,000 additional newly issued shares if the total shares we acquire in the Offer and the newly issued shares which we have committed to purchase total less than 13,840,000 shares, for a purchase price of $1.60 per share, which purchases will decrease your percentage ownership of common shares. Further, two significant shareholders have agreed to tender, subject to certain conditions, a total of 2,400,000 shares less any shares tendered by other shareholders. In this regard, we expect that following the consummation of the Offer and assuming we purchase the maximum number of newly issued shares we are entitled to purchase and we receive tenders for a minimum of 2,400,000 shares, we will own not less than approximately 17% and not more than approximately 45% of the then outstanding shares. Do I Have Appraisal or Dissenter's Rights? There are no appraisal or dissenters' rights available in connection with the Offer. 3 What Does the Company's Board of Directors Think of This Offer? The Company's Board of Directors unanimously (with one Director abstaining) authorized the Investment Agreement and determined that the Investment Agreement and the transactions contemplated thereby are in the best interests of the Company's shareholders and that the Offer Price is fair to unaffiliated shareholders of the Company. However, the Board of Directors has determined to remain neutral and is taking no position as to whether shareholders should tender their shares in the Offer. The Company will be preparing a Solicitation and Recommendation Statement containing additional information regarding the Board of Directors' determination and recommendation. The Solicitation and Recommendation Statement will be sent to shareholders no later than five days after the date of this offer. What Is the Market Value of My Shares as of a Recent Date? On May 20, 2008, the last trading day before W.P. Stewart announced that it had entered into the Investment Agreement, the last sale price of the shares reported by the New York Stock Exchange was $1.66 per share. You should obtain a recent price for shares in deciding whether to tender your shares. See Section 6 of this Offer to Purchase for information on the market price of your shares since January 2005. What Are the Tax Consequences Of Tendering Shares in the Offer? If your shares are accepted for payment pursuant to the Offer, you generally will recognize gain or loss measured by the difference between the cash you receive and your adjusted tax basis in the shares that you tender. See Section 5 of this Offer to Purchase for further information. We recommend that you consult with your tax advisor. Who Can I Talk to if I Have Questions About the Offer? You may call MacKenzie Partners, Inc., which is acting as the information agent for our Offer, toll free at (800) 322-2885. INTRODUCTION We are offering to purchase up to 19,902,000 common shares, par value $.001 per share, of W.P. Stewart, which we refer to as "shares," at an offer price of $1.60 per share, net to the seller in cash (subject to applicable withholding of United States federal, state and local taxes), less the per share amount of distributions, if any, declared and payable by the Company to common shareholders from and after the date of this offer until we become the record holder of all shares acquired in the Offer, without interest thereon, on the terms and subject to the conditions set forth in this Offer to Purchase and in the related letter of transmittal. In this Offer to Purchase, references to Sections are to sections hereof unless otherwise indicated. Tendering shareholders whose shares are registered in their own names and who tender directly to Computershare, the depositary for the Offer, will not be obligated to pay brokerage fees or commissions or, except as set forth in Instruction 6 to the letter of transmittal, stock transfer taxes on the purchase of shares by us under the Offer. We will pay all fees and expenses of Computershare and MacKenzie Partners, Inc., which is acting as the information agent, that are attributable to the Offer. We are making the Offer under the terms of the Investment Agreement. Pursuant to the Investment Agreement, following the expiration of this offer, we have agreed to purchase from the Company, at a price of $1.60 per share, 5,010,000 newly issued shares of the Company. In addition, if after our acquisition of shares in the Offer and the 5,010,000 shares we are committed to purchase from the Company, we do not hold at least 13,840,000 shares of the Company, we will have the option to purchase from the Company, at the offer price, up to 2,430,000 additional newly issued common shares of the Company. Further, two significant shareholders have agreed to tender, subject to certain conditions, a total of 2,400,000 shares less any shares tendered by other shareholders. 4 The Offer is not conditioned upon the receipt of financing or any minimum number of shares being tendered. Our obligation to accept, and pay for, shares validly tendered pursuant to the Offer is conditioned upon satisfaction of the conditions set forth in Section 13 of this Offer to Purchase. The Company's Board of Directors unanimously (with one Director abstaining) authorized the Investment Agreement because, according to the Company's Solicitation/Recommendation Statement on Schedule 14D-9 being filed with the Commission, (i) the Offer and the Transactions are in the best interest of the Company's shareholders, and (ii) the Offer Price is fair to the Company's unaffiliated shareholders. However, the Board of Directors has determined to remain neutral and is taking no position as to whether shareholders should tender their shares in the Offer. The Company will be filing a Solicitation/Recommendation Statement on Schedule 14D-9 with the Securities and Exchange Commission and mailing the 14D-9 to its shareholders as promptly as reasonably practicable after the date of the Offer but in no event later than five business days thereafter. We urge you to read the Schedule 14D-9. The Company has informed us that, as of May 20, 2008, 50,351,566 common shares were issued and outstanding. Section 5 of this Offer to Purchase describes certain United States federal income tax consequences of a sale of shares under the Offer. This Offer to Purchase and the related letter of transmittal contain important information that you should read carefully before you make any decision regarding the Offer. THE TENDER OFFER Section 1. Terms of the Offer; Proration On the terms of and subject to the conditions to the Offer, we will accept for payment and pay for up to 19,902,000 shares validly tendered prior to the Expiration Date and not theretofore properly withdrawn in accordance with Section 3 of this Offer to Purchase. The term "Expiration Date" means 5:00 p.m., Eastern Time, on July 9, 2008, unless and until we, in our sole discretion, shall have extended the period of time during which the Offer is open, in which event the term "Expiration Date" will mean the latest time and date on which the Offer, as so extended by us, will expire. For purposes of the Offer, the term "business day" means any day other than Saturday, Sunday or any U.S. federal holiday consisting of the time period from 12:01 a.m. through 12:00 midnight, Eastern Time. If more than 19,902,000 shares are validly tendered prior to the Expiration Date, and not withdrawn, we will, upon the terms and subject to the conditions of the Offer, purchase 19,902,000 shares on a pro rata basis (with adjustments to avoid purchases of fractional shares) based upon the number of shares validly tendered by the Expiration Date and not withdrawn. If proration of tendered shares is required, because of the difficulty of determining the precise number of shares properly tendered and not withdrawn, we do not expect to announce the final results of proration or pay for any shares until at least five New York Stock Exchange trading days after the Expiration Date and proration period. Preliminary results of proration will be announced by press release as promptly as practicable. Holders of shares may obtain such preliminary information from the information agent. All shares not accepted for payment due to an oversubscription will be returned to the shareholder or, in the case of tendered shares delivered by book-entry transfer, credited to the account at the book-entry transfer facility from which the transfer had previously been made, in each case, in accordance with the procedure described in Section 4 of this Offer to Purchase. Pursuant to the Investment Agreement, we have agreed that except for the transactions contemplated by the Investment Agreement until the earlier of (i) the expiration of one year from the date on which we acquire shares in accordance with the terms of the Investment Agreement, or (ii) the date on which the Company publicly announces a significant corporate transaction requiring approval of the shareholders and involving a material acquisition, disposition, amalgamation, merger or consolidation or any other similar extraordinary corporate transaction including, without limitation, the issuance of equity or debt securities by the Company that requires the approval of shareholders, 5 neither we nor any of our affiliates will (a) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any securities or property of the Company or any of its subsidiaries, (b) except at the specific written request of the Company, propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (c) make, or in any way participate in, directly or indirectly, any `solicitation' of `proxies' (as such terms are used in the proxy rules of the Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (d) form, join or in any way participate in a `group' (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to any voting securities of the Company or any of its subsidiaries, (e) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (f) disclose any intention, plan or arrangement inconsistent with the foregoing, (g) advise, assist or encourage any other persons in connection with any of the foregoing, or (h) request any waiver of the above provisions. We further agreed that during such period neither we nor our affiliates will take any action which might require the Company to make a public announcement regarding the possibility of a business combination or merger; provided that we and our affiliates may purchase additional outstanding shares in open market purchases 30 days after the Expiration Date so long as our total ownership does not at any time collectively exceed 45% of the outstanding shares. Under no circumstances will we pay interest on the Offer Price for tendered shares, whether or not we exercise our right to extend the Offer. There can be no assurance that we will exercise our right to extend the Offer. We expressly reserve the right, in our sole discretion, at any time and from time to time, (i) to extend the period of time during which the Offer is open and thereby delay acceptance for payment of, and the payment for, any shares by giving oral or written notice of such extension to the depositary, (ii) upon the occurrence or failure to occur of any of the conditions specified in Section 13, to terminate the Offer and not accept for payment any shares by giving oral or written notice of such termination to the depositary, and (iii) to amend the Offer in any respect (including, without limitation, by increasing or decreasing the consideration offered or the number of shares being sought in the Offer or both or changing the type of consideration) by giving oral or written notice of such amendment to the depositary prior to the Expiration Date, provided that any such change that would be adverse to the Company or its shareholders in any significant respect will require the prior written consent of the Company. Any extension, termination, or amendment will be followed as promptly as practicable by public announcement. The announcement in the case of an extension will be issued no later than 9:00 a.m., Eastern Time, on the next business day after the previously scheduled Expiration Date, in accordance with the requirements of Rule 14d-4(c) under the Exchange Act. Without limiting the manner in which we may choose to make any public announcement, except as provided by applicable law (including Rule 14d-4(c) under the Exchange Act), we will have no obligation to publish, advertise, or otherwise communicate any such public announcement, other than by issuing a press release. We may also be required by applicable law to disseminate to shareholders certain information concerning the extensions of the Offer and any material changes in the terms of the Offer. We will not provide a subsequent offering period following the Expiration Date. If we extend the Offer, or if we (whether before or after the shares have been accepted for payment) are delayed in our payment for shares or are unable to pay for shares pursuant to the Offer for any reason, then, without prejudice to our rights under the Offer, the depositary may retain tendered shares on our behalf, and such shares may be withdrawn to the extent tendering shareholders are entitled to withdrawal rights as described in Section 3 (generally, if notice of withdrawal is given to the depositary prior to the Expiration Date). However, our ability to delay payment for shares that we have accepted for payment is limited by Rule 14e-1 under the Exchange Act, which requires that we pay the consideration offered or return the shares deposited by or on behalf of shareholders promptly after the termination or withdrawal of the Offer, except that we may delay payment until we receive confirmation from the Company that the shares will be transferred to us. The Offer is conditioned on satisfaction of certain conditions. See Section 13 which sets forth in full the conditions of the Offer. We reserve the right (but shall not be obligated), in our sole discretion and for any reason, to waive any or all of such conditions. If, by the Expiration Date, any or all of such conditions have not been satisfied or waived, we reserve the right (but shall not be obligated) to (i) decline to purchase any of the shares tendered, terminate the Offer and return all tendered shares to tendering shareholders, (ii) waive all the unsatisfied conditions and, subject to complying with 6 applicable rules and regulations of the Securities and Exchange Commission, which we refer to as the "Commission", purchase all shares validly tendered, (iii) extend the Offer and, subject to the right of shareholders to withdraw shares until the Expiration Date, retain the shares that have been tendered during the period or periods for which the Offer is extended or (iv) to amend the Offer. Notwithstanding the foregoing, upon the expiration of the Offer, if all conditions are either satisfied or waived, we will promptly pay for all validly tendered shares upon confirmation from the Company that the shares will be transferred to us, and we do not intend to imply that our foregoing rights would permit us to delay payment for validly tendered shares following expiration. If we make a material change in the terms of the Offer or the information concerning the Offer or waive a material condition of the Offer, we will extend the Offer to the extent required by Rules 14d-4(c), 14d-6(d) and 14e-1 under the Exchange Act. The minimum period during which the Offer must remain open following a material change in the terms of the Offer or information concerning the Offer, other than a change in the Offer Price or a change in percentage of shares sought, will depend upon the facts and circumstances, including the relative materiality of the change in the terms or information. With respect to a change in price or a change in percentage of shares sought (other than an increase of not more than 2% of the shares sought), however, a minimum 10 business day period is generally required to allow for adequate dissemination to shareholders and for investor response. Any material change in the terms of the Offer will be published, sent, or given to you in a manner reasonably designed to inform you of such change; in most cases we will mail you supplemental materials. The Company has provided us with its shareholder lists and security position listing for the purpose of disseminating the Offer to holders of shares. We will mail this Offer to Purchase, the related letter of transmittal and other relevant materials to record holders of shares, and we will furnish those materials to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the Company's shareholder list or, if applicable, who are listed as participants in a clearing agency's security position listing, for subsequent transmittal to beneficial owners of shares. Section 2. Procedure for Tendering Shares Valid Tender. For a shareholder to validly tender shares under the Offer: o the depositary must receive, at one of the addresses set forth on the back cover of this Offer to Purchase and prior to the expiration date: >> a letter of transmittal, or a facsimile thereof, properly completed and duly executed, together with any required signature guarantees, or, in the case of a book-entry transfer, an agent's message (see "-- Book-Entry Transfer" below), and any other required documents; and >> either certificates representing the tendered shares or, in the case of tendered shares delivered in accordance with the procedures for book-entry transfer we describe below, a book-entry confirmation of that delivery (see "-- Book-Entry Transfer" below); or o the tendering shareholder must comply with the guaranteed delivery procedures we describe below. The valid tender of shares by you by one of the procedures described in this Section 2 will constitute a binding agreement between you and us on the terms of and subject to the conditions to the Offer. Book-Entry Transfer. For purposes of the Offer, the depositary will establish accounts for the shares at The Depository Trust Company (the "book-entry transfer facility") within two business days after the date of this Offer to Purchase. Any financial institution that is a participant in the book-entry transfer facility's system may make book-entry delivery of shares by causing the book-entry transfer facility to transfer those shares into the depositary's account in accordance with the book-entry transfer facility's procedures for that transfer. Although delivery of shares may be effected 7 through book-entry transfer into the depositary's account at the book-entry transfer facility, the letter of transmittal, or a facsimile thereof, properly completed and duly executed, with any required signature guarantees, or an agent's message, and any other required documents, must, in any case, be transmitted to, and received by, the depositary at one of the addresses set forth on the back cover of this Offer to Purchase prior to the expiration date, or the tendering shareholder must comply with the guaranteed delivery procedures we describe below. The confirmation of a book-entry transfer of shares into the depositary's account at the book-entry transfer facility as we describe above is a "book-entry confirmation." Delivery of documents to the book-entry transfer facility in accordance with the book-entry transfer facility's procedures will not constitute delivery to the depositary. The term "agent's message" means a message transmitted by the book-entry transfer facility to, and received by, the depositary and forming a part of a book-entry confirmation, stating that the book-entry transfer facility has received an express acknowledgment from the participant in the book-entry transfer facility tendering the shares that the participant has received and agrees to be bound by the terms of the letter of transmittal and that we may enforce that agreement against that participant. The method of delivery of shares, the letter of transmittal and all other required documents, including delivery through the book-entry transfer facility, is at the election and risk of the tendering shareholder. Shares will be deemed delivered only when actually received by the depositary (including, in the case of a book-entry transfer, by book-entry confirmation). If you plan to make delivery by mail, we recommend that you deliver by registered mail with return receipt requested and obtain proper insurance. In all cases, sufficient time should be allowed to ensure timely delivery. Signature Guarantees. No signature guarantee will be required on a letter of transmittal for shares tendered thereby if: o the "registered holder(s)" of those shares signs that letter of transmittal and has not completed either the box entitled "Special Delivery Instructions" or the box entitled "Special Payment Instructions" on that letter of transmittal; and o those shares are tendered for the account of an "eligible institution." For purposes hereof, a "registered holder" of tendered shares will include any participant in the book-entry transfer facility's system whose name appears on a security position listing as the owner of those shares, and an "eligible institution" is a "financial institution," which term includes most commercial banks, savings and loan associations and brokerage houses, that is a participant in any of the following: o the Security Transfer Agents Medallion Program; o the New York Stock Exchange, Inc. Medallion Signature Guarantee Program; or o the Stock Exchanges Medallion Program. Except as we describe above, all signatures on any letter of transmittal for shares tendered thereby must be guaranteed by an eligible institution. See instructions 1 and 5 to the letter of transmittal. If the certificates for shares are registered in the name of a person other than the signer of the letter of transmittal, or if payment is to be made or certificates for shares not tendered or not accepted for payment are to be returned to a person other than the registered holder of the certificates surrendered, the tendered certificates must be endorsed or accompanied by appropriate stock powers, in either case signed exactly as the name or names of the registered holders or owners appear on the certificates, with the signatures on the certificates or stock powers guaranteed as aforesaid. See Instructions 1 and 5 to the letter of transmittal. Guaranteed Delivery. If you wish to tender shares in the Offer and your certificates for shares are not immediately available or the procedures for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach the depositary prior to the expiration date, your tender may be effected if all the following conditions are met: 8 o your tender is made by or through an eligible institution; o you ensure that a properly completed and duly executed notice of guaranteed delivery, substantially in the form we provide, is received by the depositary, as provided below, prior to the expiration date; and o you ensure that the depositary receives, at one of the addresses set forth on the back cover of this Offer to Purchase and within the period of three trading days after the date of execution of that notice of guaranteed delivery, either: >> the certificates representing the shares being tendered together with (1) a letter of transmittal, or a facsimile thereof, relating thereto which has been properly completed and duly executed and includes all signature guarantees required thereon and (2) all other required documents; or >> in the case of any book-entry transfer of the shares being tendered which is effected in accordance with the book-entry transfer procedures we describe above under "-- Book-Entry Transfer" within the same period (1) either a letter of transmittal, or a facsimile thereof, relating thereto which has been properly completed and duly executed and includes all signature guarantees required thereon or an agent's message, (2) a book-entry confirmation relating to that transfer and (3) all other required documents. For these purposes, a "trading day" is any day on which the New York Stock Exchange is open for business. A notice of guaranteed delivery may be delivered to the depositary by facsimile transmission or mail and must include a guarantee by an eligible institution in the form that notice of guaranteed delivery sets forth. Other Requirements. Notwithstanding any other provision hereof, payment for shares accepted for payment under the Offer will in all cases be made only after timely receipt by the depositary of: o certificates representing, or a timely book-entry confirmation respecting, those shares; o a letter of transmittal, or a facsimile thereof, properly completed and duly executed, with any required signature guarantees thereon, or, in the case of a book-entry transfer, an agent's message in lieu of a letter of transmittal; and o any other documents the letter of transmittal requires. Accordingly, tendering shareholders may be paid at different times depending on when certificates representing, or book-entry confirmations respecting, their shares are actually received by the depositary. Under no circumstances will we pay interest on the purchase price of the shares we purchase under the Offer, regardless of any extension of the Offer or any delay in making that payment. Appointment. By executing a letter of transmittal, or a facsimile thereof, or, in the case of a book-entry transfer, by delivery of an agent's message in lieu of a letter of transmittal, you will irrevocably appoint our designees as your attorneys-in-fact and proxies in the manner the letter of transmittal sets forth, each with full power of substitution, to the full extent of your rights with respect to the shares tendered by you and accepted for payment by us and with respect to any and all other shares and other securities or rights issued or issuable in respect of such shares on or after the date of this Offer to Purchase. All these proxies will be considered coupled with an interest in the tendered shares and additional securities attributable thereto. This appointment 9 will be effective when, and only to the extent that, we accept for payment shares tendered by you as provided herein. On that appointment, all prior powers of attorney, proxies and consents you have given with respect to the shares tendered by you and accepted for payment by us and all additional securities attributable thereto will, without further action, be revoked and no subsequent powers of attorney, proxies, consents or revocations may be given by you or on your behalf (and, if given, will not be effective). Our designees will thereby be empowered to exercise all your voting and other rights with respect to those shares and additional securities in respect of any annual, special or adjourned meeting of the Company's shareholders, actions by written consent without any such meeting or otherwise, as our designees in their sole discretion deem proper. We reserve the right to require that, in order for shares to be deemed validly tendered, we must be able, immediately on our acceptance for payment of those shares, to exercise full voting, consent and other rights with respect to those shares and the additional securities attributable thereto, including voting at any meeting of shareholders or acting by written consent without such a meeting, except as otherwise provided in the Company's bye-laws. The depositary must receive, at one of the addresses set forth on the back cover of this Offer to Purchase and prior to the Expiration Date a letter of transmittal, properly completed and duly executed, together with all required signature guarantees. Determination of Validity. We will decide, in our sole discretion, all questions as to the validity, form, eligibility, including time of receipt, and acceptance of any tender of shares, and each such decision will be final and binding. We reserve the absolute right to reject any or all tenders we determine not to be in proper form or the acceptance for payment of or payment for which may, in the opinion of our counsel, be unlawful. We also reserve the absolute right to waive any defect or irregularity in the tender of any shares of any particular shareholder whether or not we waive similar defects or irregularities in the case of other shareholders. No tender of shares will be deemed to have been validly made until all defects or irregularities relating thereto have been cured or waived. None of Arrow, the depositary, the information agent nor any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. Our interpretation of the terms of and conditions to the Offer, including the letter of transmittal and the instructions thereto, will be final and binding. By tendering shares to us you agree to accept all decisions we make concerning these matters and waive any right you might otherwise have to challenge those decisions. Backup Withholding. Under the U.S. federal income tax laws, payments in connection with the transaction may be subject to "backup withholding" at a rate of 28% unless a shareholder that holds shares: o provides a correct taxpayer identification number (which, for an individual shareholder, is the shareholder's social security number) and any other required information; or o is a corporation or comes within other exempt categories and, when required, demonstrates this fact and otherwise complies with applicable requirements of the backup withholding rules. A shareholder that does not provide a correct taxpayer identification number may be subject to penalties imposed by the Internal Revenue Service. To prevent backup U.S. federal income tax withholding on cash payable under the Offer, each shareholder should provide the depositary with his or her correct taxpayer identification number and certify that he or she is not subject to backup U.S. federal income tax withholding by completing the Substitute Internal Revenue Service Form W-9 included in the letter of transmittal. (See instruction 9 to the letter of transmittal.) Backup withholding is not an additional tax. Amounts so withheld can be refunded or credited against the federal income tax liability of the shareholder, provided appropriate information is forwarded to the Internal Revenue Service. Section 3. Withdrawal Rights Except as this Section 3 otherwise provides, tenders of shares are irrevocable. You may withdraw shares that you have previously tendered under the Offer according to the procedures we describe below at any time prior to the Expiration Date and, unless theretofore accepted for payment and paid for by us under the Offer, you may also withdraw your previously tendered shares at any time after July 27, 2008. 10 For a withdrawal to be effective, a written notice of withdrawal must: o be received in a timely manner by the depositary at one of its addresses listed on the back cover of this Offer to Purchase; and o specify the name of the person who tendered the shares to be withdrawn, the number of shares to be withdrawn and the name of the registered holder of the shares to be withdrawn, if different from the name of the person who tendered the shares. If certificates for shares have been delivered or otherwise identified to the depositary, then, prior to the physical release of those certificates, the serial numbers shown on those certificates must be submitted to the depositary and, unless an eligible institution has tendered those shares, an eligible institution must guarantee the signatures on the notice of withdrawal If shares have been delivered in accordance with the procedures for book-entry transfer set forth in Section 2 of this Offer to Purchase, any notice of withdrawal must also specify the name and number of the account at the book-entry transfer facility to be credited with the withdrawn shares and otherwise comply with the book-entry transfer facility's procedures. Withdrawals of tenders of shares may not be rescinded, and any shares properly withdrawn will thereafter be deemed not validly tendered for purposes of the Offer. Withdrawn shares may be retendered at any time prior to the expiration date by again following one of the procedures described in Section 2. We will decide, in our sole discretion, all questions as to the form and validity, including time of receipt, of notices of withdrawal, and each such decision will be final and binding. We also reserve the absolute right to waive any defect or irregularity in the withdrawal of shares by any shareholder, whether or not we waive similar defects or irregularities in the case of any other shareholder. None of Arrow, the depositary, the information agent nor any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification. Section 4. Acceptance for Payment and Payment On the terms of and subject to the conditions to the Offer, including, if we extend or amend the Offer, the terms and conditions of any such extension or amendment, we will accept for payment and will pay promptly after the Expiration Date and upon confirmation from the Company that the shares will be transferred to us, for all shares validly tendered prior to the Expiration Date and not properly withdrawn in accordance with Section 3 of this Offer to Purchase, up to a maximum of 19,902,000 shares. Based upon our experience, confirmation will generally occur approximately 10 days after the depositary's receipt of the documentation described in the instructions provided with the letter of transmittal. We will decide, in our sole discretion, all questions as to the satisfaction of those terms and conditions, and each such decision will be final and binding. We expressly reserve the right, in our sole discretion, to delay acceptance for payment of or payment for shares in order to comply in whole or in part with any applicable law. We will effect any such delays in compliance with Exchange Act Rule 14e-1(c), which relates to the obligation of a bidder to pay for or return tendered securities promptly after the termination or withdrawal of its offer. In all cases, we will pay for shares we have accepted for payment under the Offer only after timely receipt by the depositary of: o certificates representing, or a timely book-entry confirmation respecting, those shares; o a letter of transmittal, or a facsimile thereof, properly completed and executed with any required signatures thereon or, in the case of a book-entry transfer, an agent's message; and o any other documents the letter of transmittal requires. 11 Accordingly, tendering shareholders may be paid at different times depending on when certificates for shares or book-entry confirmations respecting shares are actually received by us. The per share consideration we will pay to any shareholder under the Offer will be the highest per share consideration we will pay to any other shareholder under the Offer. For purposes of the Offer, we will be deemed to have accepted for payment, and thereby purchased, shares properly tendered to us and not withdrawn as, if and when we give oral or written notice to the depositary of our acceptance for payment of those shares. On the terms of and subject to the conditions to the Offer, we will pay for shares we have accepted for payment under the Offer by depositing the purchase price therefor with the depositary. The depositary will act as agent for tendering shareholders for the purpose of receiving payment from us and transmitting payment to tendering shareholders whose shares we have accepted for payment. Upon the deposit of funds with the depositary for the purpose of making payment to validly tendering shareholders, our obligation to make such payment shall be satisfied and such tendering shareholders must thereafter look solely to the depositary for payment of the amounts owed to them by reason of acceptance for payment of shares pursuant to the Offer. Under no circumstances will we pay interest on the Offer Price for tendered shares, regardless of any extension of or amendment to the Offer or any delay in paying for those shares. If we are delayed in our acceptance for payment of or payment for shares or are unable to accept for payment or pay for shares under the Offer for any reason, then, without prejudice to our rights under the Offer, but subject to our compliance with Exchange Act Rule 14e-1(c), the depositary nevertheless may retain tendered shares on our behalf and those shares may not be withdrawn except to the extent tendering shareholders are entitled to exercise, and duly exercise, the withdrawal rights described in Section 3 of this Offer to Purchase. Section 5. Certain U.S. Federal Income Tax Consequences Shareholders are urged to consult their own tax advisors as to the particular tax consequences to them of the Offer, including the effect of state and local tax laws or foreign tax laws. This summary assumes that each shareholder is, for United States federal income tax purposes: (1) a citizen or resident of the United States; (2) a corporation or other entity taxable as a corporation created or organized in the United States or under the laws of the United States or of any political subdivision of the United States; or (3) an estate or trust, the income of which is includible in gross income for federal income tax purposes regardless of its source. It also assumes that the Company is not a "passive foreign investment company" for U.S. federal tax purposes. Your receipt of cash for shares accepted for payment in the Offer will be a taxable transaction for U.S. federal income tax purposes under the Internal Revenue Code of 1986, as amended (the "Code"), and also may be a taxable transaction under applicable state, local or foreign income or other tax laws. Generally, for U.S. federal income tax purposes, you will recognize gain or loss equal to the difference between the amount of cash you receive and your adjusted tax basis in the shares purchased. Gain or loss will be calculated separately for each block of shares tendered and purchased under the Offer. If you hold shares as capital assets, the gain or loss you recognize will be capital gain or loss, which will be long-term capital gain or loss if your holding period for the shares exceeds one year. If you are a non-corporate shareholder, under current law, long-term capital gains are eligible for a maximum federal income tax rate of 15%. (Long-term capital gain of corporations is taxed to them at the same rate as ordinary income.) Under current law the ability to use capital losses to offset ordinary income is limited. You should consult your tax advisor in this regard. The foregoing discussion may not be applicable with respect to shareholders who are subject to special tax treatment under the Code, such as non-U.S. persons, life insurance companies, tax-exempt organizations and financial institutions. In addition, the foregoing discussion may not apply to a shareholder in light of individual circumstances, such as holding shares as a hedge or as part of a straddle or a hedging, constructive sale, integrated or other risk-reduction transaction. We base this discussion on current law, which is subject to change, possibly with retroactive effect. 12 Shareholders may be subject to backup withholding at a 28% rate on the Offer Price for each Share tendered unless certain information is provided to the depositary or an exemption applies. See Section 2--Backup withholding of this Offer to Purchase. Section 6. Price Range of the Shares The shares are traded on the New York Stock Exchange under the symbol "WPL." The following table sets forth, for each of the periods indicated, the high and low sales prices per share as reported by the New York Stock Exchange based on published financial sources. High Low ---- --- 2008 ---- April 1 - May 20 $ 1.88 $ 1.32 Quarter ended March 31 5.47 1.40 2007 Quarter Ended ------------------ December 31 $ 10.53 $ 4.58 September 30 15.09 9.25 June 30 11.19 9.66 March 31 16.28 9.75 2006 Quarter Ended ------------------ December 31 $ 15.88 $ 10.76 September 30 15.67 9.50 June 30 21.23 14.88 March 31 24.19 17.43 On May 20, 2008, the last trading day before the Company announced that it had entered into the Investment Agreement, the last sale price of the Company's shares reported by the New York Stock Exchange was $1.66. We urge shareholders to obtain a current market price for the shares. Section 7. Effect of the Offer Market for Shares. We have agreed in the Investment Agreement to purchase, following the expiration of the Offer, 5,010,000 newly issued shares from the Company and have an option to acquire up to 2,430,000 additional newly issued shares if the total shares we acquire in the Offer and the newly issued shares which we have committed to purchase total less than 13,840,000 shares, which purchases will decrease your percentage ownership of common shares. Further, as described in Section 11. Principal Shareholder Agreements, two significant shareholders have agreed to tender, subject to certain conditions, a total of 2,400,000 shares less any shares tendered by other shareholders. In this regard, we expect that following the consummation of the Offer and assuming we purchase the maximum number of newly issued shares we are entitled to purchase, we will own not less than approximately 17% and not more than approximately 45% of the outstanding shares. Accordingly, depending on the number of shares tendered in 13 the Offer and/or the number of additional newly issued shares we elect to purchase, our votes could significantly influence the outcome of any matter requiring the vote of shareholders. However, under the terms of the Investment Agreement and the Company's organizational documents, our voting power will be limited to an aggregate of 24% (9.5% individually) of the shares we acquire, with the balance of the shares being voted pursuant to the terms of the Company's bye-laws which provide that the voting rights with respect to those shares for which we do not have voting rights are to be allocated proportionally among the remaining shareholders other than us. Our purchase of shares under the Offer may also reduce the number of holders of shares and the number of shares that might otherwise trade publicly and could adversely affect the liquidity and market value of the remaining shares the public holds. Pursuant to the terms of the Investment Agreement, the Company has agreed that for a period of one year from the Expiration Date the shares will either remain listed on the New York Stock Exchange, or if continued listing on the New York Stock Exchange is impracticable, the Company will seek to list the shares on the American Stock Exchange or NASDAQ. Accordingly, we expect that the Company will continue to be a public company for at least one year following the Offer. Exchange Act Reporting Requirements. The shares are registered under the Exchange Act, which requires, among other things that the Company furnish certain information to its shareholders and to the Commission. Registration and reporting requirements could be terminated by the Company if the number of record holders falls below 300 or below 500 if the Company's total assets are below $10 million for the three consecutive preceding fiscal years. The Company has reported that as of May 20, 2008 it had approximately 163 shareholders of record, with one shareholder, WPS II, Inc., owning 38.26% of the shares. Accordingly, it is possible, that the Offer could result in the termination of the Company's reporting obligations under the Exchange Act. However, as stated above, the Company has agreed that for a period of one year from the Expiration Date the shares will either remain listed on the New York Stock Exchange, or if continued listing on the New York Stock Exchange is impracticable, the Company will seek to list the shares on the American Stock Exchange or NASDAQ. Accordingly, we expect that the Company will continue subject to the reporting obligations under the Exchange Act for not less than one year. Section 8. Information Concerning W.P. Stewart & Co., Ltd. General. As disclosed in W.P. Stewart's Annual Report on Form 20-F for the year ended December 31, 2006, W.P. Stewart is an exempted company formed under the laws of Bermuda and engages in equity investment management services worldwide. W.P. Stewart was incorporated in 1998. W.P. Stewart's executive offices are at Trinity Hall, 43 Ceder Avenue, Hamilton, HMLX, Bermuda. W.P. Stewart maintains a website at www.wpstewart.com at which additional information regarding W.P. Stewart is available. Available Information. W.P. Stewart is subject to the informational requirements of the Exchange Act and, in accordance therewith, is required to file reports relating to its business, financial condition and other matters. W.P. Stewart must disclose in its Form 20-F and file with the Commission information as of particular dates concerning its directors and officers, their remuneration, stock options and other matters, the principal holders of its securities and any material interest of those persons in transactions with W.P. Stewart. We have been advised that W.P. Stewart's Annual Report on Form 20-F for the year ended December 31, 2007 will be filed with the Commission no later than June 30, 2008. We urge you to review this Annual Report on Form 20-F as well as other public filings made by the Company. W.P. Stewart's Annual Report on Form 20-F for the year ended December 31, 2006 and other information filed with the Commission by W.P. Stewart is available for inspection at the public reference facilities of the Commission at 100 F Street, N.E., Washington, DC 20549. You can obtain copies of that information by mail, upon payment of the Commission's customary charges, by writing to the Commission's principal office at 100 F Street, N.E., Washington, DC 20549. The Commission also maintains a web site that contains reports and other information regarding registrants that file electronically with it. You can find those reports and other information on the Commission's web site, www.sec.gov. Except as otherwise stated herein, the information concerning W.P. Stewart contained herein has been taken from or based on publicly available documents on file with the Commission and other publicly available information. Although we do not have any knowledge that any such information is untrue, we do not take any responsibility for the accuracy or completeness of that information or for any failure by W.P. Stewart to disclose events that may have occurred and may affect the significance or accuracy of any such information but that are unknown to us. 14 Section 9. Information Concerning Arrow and Its Affiliates General. Each of Arrow Masters LP and Arrow Partners LP are Delaware limited partnerships, and Arrow Offshore, Ltd. is a Cayman Island exempted company. Each of Arrow Masters LP, Arrow Partners LP and Arrow Offshore, Ltd. are investment vehicles that invest primarily in public companies. The general partner of each of Arrow Masters LP and Arrow Partners LP is Arrow Advisors LLC, a Delaware limited liability company. Arrow Capital Management, LLC, a Delaware limited liability company, is the sole investment advisor of each of Arrow Masters LP and Arrow Partners LP, and the co-investment advisor with Arrow Offshore Advisors, LLC, a Delaware limited liability company, of Arrow Offshore, Ltd. Each of the Arrow Advisors, is owned and controlled by Alexandre von Furstenberg and Mal Serure and Messrs. von Furstenberg and Serure are the executive officers of Arrow Offshore, Ltd. For information concerning Messrs. von Furstenberg and Serure see Schedule 1 to this Offer to Purchase. Collectively, we currently hold assets aggregating approximately $600 million and have over $200 million available for investment. The principal office of each of Arrow Masters LP, Arrow Partners LP, the Arrow Advisors and Messrs. Serure and von Furstenberg is located at 499 Park Avenue, New York, New York 10022 and their telephone number is (212) 243-7338. The principal office of Arrow Offshore, Ltd. is located at c/o Meridian Fund Services Limited, 73 Front Street, Hamilton HM 12, Bermuda and its telephone number is 345-949-9876. None of Arrow Masters LP, Arrow Partners LP, Arrow Offshore, Ltd., the Arrow Advisors, Mr. Serure, Mr. von Furstenberg nor any of their affiliates own any shares of the Company. Except as otherwise set forth herein, (i) neither Arrow Masters LP, Arrow Partners LP, Arrow Offshore, Ltd., the Arrow Advisors, Mr. Serure, Mr. von Furstenberg or any affiliate, associate or majority-owned subsidiary thereof beneficially owns or has a right to acquire any shares of the Company, (ii) none of Arrow Masters LP, Arrow Partners LP, Arrow Offshore, Ltd., the Arrow Advisors, Mr. Serure, Mr. von Furstenberg, or any affiliate of thereof has effected any transaction in the shares of the Company within the past 60 days, (iii) none of Arrow Masters LP, Arrow Partners LP, Arrow Offshore, Ltd., the Arrow Advisors, Mr. Serure, Mr. von Furstenberg, or any affiliate thereof has any contract, arrangement, understanding or relationship with any other person with respect to any securities of the Company, including but not limited to, contracts, arrangements, understandings or relationships concerning the transfer or voting thereof, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss or the giving or withholding of proxies, consents or authorizations, (iv) there have been no transactions or business relationships which would be required to be disclosed under the rules and regulations of the Commission between Arrow Masters LP, Arrow Partners LP, Arrow Offshore, Ltd., the Arrow Advisors, Mr. Serure, Mr. von Furstenberg, or any affiliate thereof on the one hand, and the Company or its officers, directors or affiliates, on the other hand, (v) there have been no contracts, negotiations or transactions between Arrow Masters LP, Arrow Partners LP, Arrow Offshore, Ltd., the Arrow Advisors, Mr. Serure, Mr. von Furstenberg, or any affiliate thereof on the one hand, and the Company or its affiliates, on the other hand, concerning a merger, consolidation or acquisition, tender offer or other acquisition of securities, an election of directors or a sale or other transfer of a material amount of assets, (vi) neither Mr. Serure nor Mr. von Furstenberg has been convicted in a criminal proceeding during the past five years (excluding traffic violations or similar misdemeanors), and (vii) neither Mr. Serure nor Mr. von Furstenberg has been a party to any judicial or administrative proceeding during the past five years (except for matters dismissed without sanction or settlement) that resulted in a judgment, decree, or final order enjoining him from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal or state securities laws. Section 10. Source and Amount of Funds The offer is not conditioned on any financing arrangements. We will require funds totaling $31,843,200 in order to purchase the 19,902,000 shares we are seeking in the Offer and an additional $8,016,000 to purchase the 5,010,000 newly issued shares we have committed to purchase following the Offer. We anticipate that an additional amount of approximately $150,000 may be required to pay related fees and expenses. We expect to pay shareholders for shares tendered out of our current cash available for investment which is currently in excess of $200 million. 15 Section 11. Contacts and Transactions With the Company; Background of the Offer Background of the Offer. On April 15, 2008, we contacted a representative of Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), the Company's investment bank, to express an interest in entering into a potential transaction with the Company. Merrill Lynch provided us with a confidentiality agreement which we signed on April 16, 2008. Messrs. von Furstenberg and Serure and Quinn Martin, Jr., executive officers of Arrow, had multiple conversations with William Stewart, the Company's Chief Executive Officer, over the next several days to explore the structure of a possible transaction and on April 25, 2008, Mr. von Furstenberg met with Mr. Stewart to further explore a potential transaction. On April 28, 2008, Mr. von Furstenberg and Mr. Serure had additional conversations with Mr. Stewart and representatives of Merrill Lynch relating to a proposed transaction. On April 29, 2008 we sent a letter to Mr. Stewart and the Board of Directors of the Company setting forth the terms of our proposed offer. During the weeks of May 5, May 12, and May 19, we had discussions and met with representatives of the Company in an effort to finalize the transaction structure. In addition, Dorsey and Whitney LLP, counsel to the Company, worked with our attorneys, Post Heymann & Koffler LLP, to complete the Investment Agreement and Registration Rights Agreement. On May 5, 2008, Jan Spiering, a director of the Company and a member of the Company's Special Committee which was formed to review strategic transactions for the Company met with Mr. von Furstenberg and a representative of Merrill Lynch to discuss the proposed transactions. Our representatives and the Company's representatives held additional discussions during the week of May 5 relating to the terms of a transaction. On May 9, 2008, the Company's legal counsel provided to our legal counsel a draft Investment Agreement setting forth the terms of the transaction. On May 10, 2008, our legal counsel provided to the Company's legal counsel comments to the draft Investment Agreement. We and our legal counsel continued to negotiate the Investment Agreement and the Registration Rights Agreement with the Company and its legal counsel. On the afternoon of May 19, 2008, representatives of Merrill Lynch had a conversation with our representatives in which our representatives sought increased assurance that we would be able to acquire a minimum ownership position of approximately 20% of the outstanding shares in the transactions. To address this concern, Mr. Stewart and Mr. Kahn agreed to enter into the agreements described under - Principal Shareholder Agreements below. On May 20, 2008, Merrill Lynch representatives called us to advise us that the Company's Special Committee had unanimously recommended to the Company's Board and the Company's Board had unanimously approved the transactions (with Mr. Stewart abstaining due to a potential conflict of interest). Both we and the Company agreed that the final price per share in the Offer and the purchase price for the newly issued shares would be set at $1.60. On May 20, 2008, both we and the Company signed the Investment Agreement and the Registration Rights Agreement. Mr. Stewart and Mr. Kahn also executed the agreements described under - - Principal Shareholder Agreements below pursuant to which they agreed, subject to certain conditions, to tender up to 2,400,000 shares in the aggregate. Investment Agreement. The following is a summary of the material provisions of the Investment Agreement entered into between us and the Company. For more complete information, please refer to the full text of the Investment Agreement, a copy of which is attached as exhibit (d)(1) to our Schedule TO filed with the Securities and Exchange Commission on May 28, 2008. We encourage you to read the Investment Agreement in its entirety because it, and not this summary, is the legal document that governs the rights and obligations of the parties under the Investment Agreement. The Offer. Pursuant to the terms of the Investment Agreement, we agreed to commence this offer no later than May 28, 2008 on the terms set forth in this Offer to Purchase. The Company agreed to file with the Securities and Exchange Commission a Solicitation/Recommendation Statement on Schedule 14D-9, within five business days after commencement of the Offer, stating that its Board of 16 Directors has authorized the Investment Agreement and all the transactions contemplated thereby, and has determined that the Investment Agreement and such transactions are in the best interests of the shareholders and that the Offer Price is fair to tendering shareholders from a financial standpoint but that the Board of Directors is remaining neutral and is not taking a position as to whether the shareholders should tender their shares in the offer. We are entitled to include the Board of Directors recommendation in our Offer to Purchase. Newly Issued Share Purchase. On the second business day following the Expiration Date, the Company will issue to us, and we will purchase, an additional 5,010,000 shares at the Offer Price. In addition, if after our acquisition of shares in the Offer and the 5,010,000 shares we are committed to purchase from the Company, we do not hold at least 13,840,000 shares of the Company, we will have the option to purchase from the Company, at the Offer Price, up to 2,430,000 additional newly issued common shares of the Company. Representations and Warranties. The Investment Agreement contains certain customary representations by the Company and us. Bye-law Waiver. As permitted by its Bye-laws, the Company has agreed to a limited waiver of certain of its Bye-law provisions to enable us to vote in the aggregate up to 24% of the shares we acquire; provided, however, neither Arrow Masters LP, Arrow Partners LP nor Arrow Offshore, Ltd. may individually vote in excess of 9.5% of any shares that they acquire. Maintaining Share Listing. The Company has agreed that for a period of one year from the Expiration Date the shares will either remain listed on the New York Stock Exchange, or if continued listing on the New York Stock Exchange is impracticable, the Company will seek to list the shares on the American Stock Exchange or NASDAQ. Listing of Newly Issued Shares. As soon as practicable following commencement of the Offer, the Company will file with the New York Stock Exchange an application to list the maximum number of newly issued shares issuable pursuant to the Investment Agreement, in accordance with the New York Stock Exchange's listing standards. If the listing of the shares with the New York Stock Exchange is not practicable, the newly issued shares shall have been approved for listing on such other exchange as the shares are then listed. Termination. The Investment Agreement may be terminated at any time prior to the closing as follows: o by mutual consent of us and the Company; o by either us or the Company if any governmental authority shall have issued any order which has the effect of making consummation of the offer or the newly issued share purchase illegal; o by us if, prior to the closing, (i) the Board of Directors of the Company or any committee of the Board of Directors of the Company shall have withdrawn or modified in a manner adverse to us its approval of the Investment Agreement, the newly issued share purchase or the Board of Directors of the Company recommendation, or (ii) the Board of Directors of the Company approves or recommends an acquisition proposal by a third party that the Board of Directors of the Company determines to be superior to the transactions under the Investment Agreement, provided, that if we terminate the Investment Agreement as provided in this clause (ii), the Company has agreed to pay to us $500,000 as liquidated damages, provided, further that if we have not yet terminated the Investment Agreement, we will no longer have the right to terminate as provided in clause (ii) above once the Company has notified us that the Board of Directors of the Company has withdrawn its recommendation and approval of the acquisition proposal and has reinstated its approval of the Investment Agreement and board recommendation; o by the Company, upon approval of the Board of Directors of the Company, if (i) we shall have terminated the offer without having accepted any shares for payment or failed to pay for shares pursuant to the offer by August 29, 2008, unless such action or inaction was 17 caused by or resulted from the failure of certain conditions of the offer that pertain to obligations of or representations by the Company or (ii) prior to the purchase of shares pursuant to the offer, the board determines, upon consultation with outside counsel, that it is required to do so by its fiduciary duties under applicable law, in which event the Company has agreed to pay us $500,000 as liquidated damages; or o by either us or the Company following the date which is 90 days after the entering by any governmental authority of a temporary restraining order or preliminary injunction, which has not been vacated or dismissed, that prohibits the consummation, in whole or in part, of the offer or the newly issued share issuance. Standstill. We have agreed that except for the transactions contemplated by the Investment Agreement until the earlier of (i) the expiration of one year from the date on which we acquire shares in accordance with the terms of the Investment Agreement, or (ii) the date on which the Company publicly announces a significant corporate transaction requiring approval of the shareholders and involving a material acquisition, disposition, amalgamation, merger or consolidation or any other similar extraordinary corporate transaction including, without limitation, the issuance of equity or debt securities by the Company that requires the approval of shareholders, neither we nor any of our affiliates will (a) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any securities or property of the Company or any of its subsidiaries, (b) except at the specific written request of the Company, propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (c) make, or in any way participate in, directly or indirectly, any `solicitation' of `proxies' (as such terms are used in the proxy rules of the Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (d) form, join or in any way participate in a `group' (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to any voting securities of the Company or any of its subsidiaries, (e) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (f) disclose any intention, plan or arrangement inconsistent with the foregoing, (g) advise, assist or encourage any other persons in connection with any of the foregoing, or (h) request any waiver of the above provisions. We further agreed that during such period neither we nor our affiliates will take any action which might require the Company to make a public announcement regarding the possibility of a business combination or merger; provided that we and our affiliates may purchase additional outstanding shares in compliance with applicable laws, rules and regulations in open market purchases 30 days after the Expiration Date so long as our total ownership does not at any time collectively exceed 45% of the outstanding shares. Principal Shareholder Agreements. William P. Stewart, Jr., as trustee of certain trusts, and Robert Kahn, two shareholders of the Company, have agreed that, subject to certain conditions, to the extent that Arrow receives tenders from other shareholders for less than 2,400,000 shares, they will tender shares to Arrow in the Offer equal to such difference. Mr. Stewart, as trustee, agreed to tender 81.25% of such shares and Mr. Kahn agreed to tender 18.75% of such shares. Registration Rights Agreement. We and the Company have entered into a Registration Rights Agreement pursuant to which the Company will commit to use its best commercially reasonable efforts to register for resale all of the newly issued shares that we acquire as well as the shares acquired in the Offer at any time after one year from the closing of the newly issued share issuance upon our request. The Registration Rights Agreement provides that the Company will pay all costs (except underwriting discounts and commissions) associated with any such registration with respect to one Registration Statement on Form F-1 and up to three Registration Statements on Form F-3. The Registration Rights Agreement contains customary representations and warranties as well as customary indemnification provisions. For more complete information, please refer to the full text of the Registration Rights Agreement, a copy of which is attached to the Company's report on Form 6-K filed with the Securities and Exchange Commission on May 28, 2008. We encourage you to read the Registration Rights Agreement in its entirety because it, and not this summary, is the legal document that governs the rights and obligations of the parties under the Registration Rights Agreement. 18 Section 12. Purpose of the Offer; Plans For the Company We are seeking to acquire shares in the Offer for investment purposes. If we acquire all of the shares we are seeking, we will own, after acquiring the newly issued shares we have committed to purchase, approximately 45% of the outstanding shares and, we believe, will be the Company's largest shareholder. We may seek to acquire additional shares in the future both in private and public transactions. See Section 11. Investment Agreement-Standstill for restrictions we have agreed to with respect to our ownership of shares. Section 13. Conditions to the Offer Notwithstanding any other term of the Offer, we shall not be required to accept for payment or to pay for any shares tendered unless all authorizations or approvals of, or expirations of waiting periods imposed by, any court, administrative agency or other governmental authority necessary for the consummation of the transactions contemplated by the Offer shall have been obtained or occurred on or before the Expiration Date. Notwithstanding any other provision of the Offer, we will not be required to accept for payment any shares tendered pursuant to the Offer at the expiration of the Offer, if any of the following conditions shall exist: (a) there shall have been instituted and remain pending any action brought by any governmental authority of competent jurisdiction over the Company (i) challenging or seeking to make illegal or otherwise directly or indirectly restrain or prohibit the Offer or the issuance of the newly issued shares, (ii) seeking to impose material limitations on the ability of Arrow to exercise effectively full rights of ownership of any shares, including, without limitation, the right to vote any shares acquired or owned by Arrow on all matters properly presented to the shareholders, or (iii) seeking to require divestiture by Arrow of any shares; (b) there shall be in effect any judgment, order or injunction entered or issued by any governmental authority of competent jurisdiction having the effect of making the consummation of the Offer or the issuance of the newly issued shares illegal or otherwise preventing or prohibiting consummation of the Offer or our purchase of the newly issued shares; (c) (i) the Board of Directors of the Company, or any committee thereof, shall have withdrawn or modified, in a manner adverse to Arrow and not reinstated, its approval of the Investment Agreement, our purchase of the newly issued shares or the recommendation by the Board of Directors of the Company, shall have recommended that shareholders not tender their shares in the Offer, shall have approved or recommended any alternative transaction or any other material acquisition of shares other than the Offer or our purchase of the newly issued shares or (ii) the Board of Directors of the Company, or any committee thereof, shall have resolved to do any of the foregoing; (d) any representation or warranty of the Company in the Investment Agreement shall not be true and correct as of such time on or after the date of this Investment Agreement, except as would not have a Material Adverse Effect (as defined in Section 1.1 of the Investment Agreement, which is attached as Exhibit (d)(1) to our tender offer statement on Schedule TO filed on May 28, 2008 ) or prevent or materially delay consummation of the Transactions (as defined in the Investment Agreement), or otherwise prevent the Company from performing its obligations under the Investment Agreement; (e) the Company shall have failed to perform any material obligation or to comply with any material agreement or covenant of the Company to be performed or complied with by it at or prior to the expiration of the Offer under the Investment Agreement or any agreement contemplated hereby; (f) the Investment Agreement shall have been terminated in accordance with its terms; (g) the Company shall not have filed with the Commission its Annual Report on Form 20-F for the year ended December 31, 2007; 19 (h) Arrow and the Company shall have agreed that Arrow shall terminate the Offer; or (i) any newly issued shares shall not have been listed or approved for listing on such exchange as the shares are then listed. The foregoing conditions are for the sole benefit of Arrow and may be asserted by Arrow or may be waived by Arrow in whole or in part at any time and from time to time prior to the Expiration Date in its sole exercise of reasonable discretion, and this offer will remain open for a period of at least five business days following any such waiver of a material condition. However, if we waive a certain condition in this Section 13 for one tendering shareholder, we will waive that condition for all shareholders tendering shares. Section 14. Legal Matters General. Except for filings with the Commission and as set forth in this Section 14, we are not aware of any filings, approvals or other actions by any domestic or foreign governmental or administrative agency that would be required prior to the acquisition of shares by us pursuant to the Offer. Should any such approval or other action be required, it is our present intention that such additional approval or action would be sought. While there is no present intent to delay the purchase of shares tendered pursuant to the Offer pending receipt of any such additional approval or the taking of any such action, there can be no assurance that any such additional approval or action, if needed, would be obtained without substantial conditions or that adverse consequences might not result to the Company's business, or that certain parts of the Company's business might not have to be disposed of or held separate or other substantial conditions complied with in order to obtain such approval or action. Our obligation to purchase and pay for shares is subject to the conditions in this Offer to Purchase and the letter of transmittal, including conditions related to the legal matters discussed in this Section 14. Antitrust. We do not believe that notification requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, is applicable to the acquisition of shares pursuant to the Offer. Margin Requirements. We do not believe the shares are "margin securities" under the regulations of the Board of Governors of the Federal Reserve System and, accordingly, we do not believe such regulations are applicable to the Offer. State Takeover Laws. A number of states have adopted anti-takeover laws which purport, to varying degrees, to be applicable to attempts to acquire securities of corporations which are incorporated in such states or which have substantial assets, security holders, principal executive offices or principal places of business therein. However, we do not believe that any anti-takeover laws apply to the transactions contemplated by the Offer due to the percentage of shares being sought in the Offer. Although we have not attempted to comply with any state anti-takeover statutes in connection with the Offer, we reserve the right to challenge the validity or applicability of any state law allegedly applicable to the Offer and nothing in this offer nor any action taken in connection herewith is intended as a waiver of such right. If any state anti-takeover statute is applicable to the Offer, we might be unable to accept for payment or purchase shares tendered pursuant to the Offer or be delayed in continuing or consummating the Offer. In such case, we may not be obligated to accept for purchase or pay for any shares tendered. Section 15. Fees and Expenses We have retained Computershare to act as depositary and MacKenzie Partners, Inc. to act as information agent in connection with the Offer. We will pay the depositary and the information agent reasonable and customary compensation for their services in connection with the Offer, plus reimbursement for out-of-pocket expenses, and will indemnify the depositary and the information agent against certain liabilities and expenses in connection therewith, including any liabilities under the federal securities laws. We will pay all costs and expenses of printing, publication and mailing of the Offer. 20 Section 16. Miscellaneous The Offer is not being made to, nor will tenders be accepted from or on behalf of, holders of shares in any jurisdiction in which the making of the Offer or the acceptance thereof would not comply with the laws of that jurisdiction. No person has been authorized to give any information or to make any representation on our behalf not contained herein or in the letter of transmittal and, if given or made, that information or representation must not be relied on as having been authorized. We have filed with the Commission a tender offer statement on Schedule TO, together with exhibits, furnishing additional information with respect to the Offer, and may file amendments thereto. That schedule and any amendments thereto, including exhibits, should be available for inspection and copies should be obtainable in the manner described in Section 8 of this Offer to Purchase, except that this material will not be available at the regional offices of the Commission. ARROW MASTER LP ARROW PARTNERS LP ARROW OFFSHORE, LTD. May 28, 2008 21 S-1 SCHEDULE I CERTAIN INFORMATION REGARDING THE PRINCIPALS OF ARROW ADVISORS LLP, ARROW CAPITAL MANAGEMENT LLC AND ARROW OFFSHORE ADVISORS, LLC
Name Business Experience - ---- ------------------- Mal Serure Mr. Serure is currently the Co-Managing Member of each of Arrow Advisors LLC, Arrow Capital Management LLC and Arrow Offshore Advisors, LLC (collectively, the "Arrow Advisors"), positions he has held since 2005. Prior to joining the Arrow Advisors, Mr. Serure was in the Private Client Services Group at Bear Stearns & Co., Inc. from 1994 to 2005 where he managed client assets on behalf of high net worth individuals and institutions, and was responsible for all portfolio management decisions and trading activity related to those assets. Alexandre von Furstenberg Mr. von Furstenberg is currently the Co-Managing Member of each of the Arrow Advisors, positions he has held since 2003. Mr. von Furstenberg is also a partner and director of Diane von Furstenberg Studio, L.P. a high-end clothing apparel company. Prior to forming Arrow Advisors LLC in 2003, Mr. von Furstenberg co-founded two separate hedge funds and was the Chief Investment Officer of Arrow Investments, Inc,. a private investment office serving his family.
Each of the foregoing individuals is a United States citizen. 22 IMPORTANT Any shareholder desiring to tender any or all of such shareholder's shares should, prior to July 9, 2008, mail or deliver to Computershare at the address set forth below (a) a properly completed and duly executed Letter of Transmittal (a copy of which is enclosed with this Offer to Purchase), including all required signature guarantees, and (b) any other documents required by the Letter of Transmittal. The Depositary for the Offer to Purchase is: [LOGO] Computershare By Mail: By Overnight Courier: Computershare Computershare c/o Voluntary Corporate Actions c/o Voluntary Corporate Actions P.O. Box 859208 161 Bay State Drive Braintree, MA 02185-9208 Braintree, MA 02184 _____________________________ Questions or requests for assistance or additional copies of this Offer to Purchase or the Letter of Transmittal may be directed to MacKenzie Partners, Inc., at the address or telephone number set forth below. MacKenzie Partners, Inc. 105 Madison Avenue New York, New York 10016 proxy@mackenziepartners.com (212) 929-5500 (call collect) or Toll-Free (800) 322-2885 EX-99.(A)(2) 3 e603876_ex99-a2.txt Letter of Transmittal To Tender Common Shares of W.P. Stewart & Co., Ltd. Pursuant to the Offer to Purchase Dated May 28, 2008 by ARROW MASTERS LP, ARROW PARTNERS LP AND ARROW OFFSHORE, LTD. THE OFFER, WITHDRAWAL RIGHTS AND PRORATION PERIOD WILL EXPIRE AT 5:00 P.M, EASTERN TIME, ON WEDNESDAY, JULY 9, 2008 UNLESS THE OFFER IS EXTENDED ___________________________ The Depositary for the Offer is: [COMPUTERSHARE LOGO] By Mail: By Overnight Courier: Computershare Computershare c/o Voluntary Corporate Actions c/o Voluntary Corporate Actions P.O. Box 859208 161 Bay State Drive Braintree, MA 02185-9208 Braintree, MA 02184 DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED. - -------------------------------------------------------------------------------- DESCRIPTION OF SHARES TENDERED - -------------------------------------------------------------------------------- Name(s) and Address(es) of Registered Holder(s) (Please Fill In, if Blank, Exactly as Share Certificate(s) and Shares Name(s) Appear(s) on Tendered (Attach Additional Signed Certificates List if Necessary) * - ------------------------------- ------------------------------------------------ Shares Total Number of Number of Certificate Shares Represented Shares Number(s) by Certificate(s) Tendered ** ------------- -------------------- ------------- ------------- -------------------- ------------- ------------- -------------------- ------------- ------------- -------------------- ------------- ------------- -------------------- ------------- ------------- -------------------- ------------- Total Shares ------------- -------------------- ------------- - -------------------------------------------------------------------------------- * Need not be completed if transfer is made by book-entry transfer. ** Unless otherwise indicated, it will be assumed that all shares described above are being tendered. See Instruction 4. - -------------------------------------------------------------------------------- This letter of transmittal is to be used either if certificates for shares (as defined below) are to be forwarded herewith or, unless an agent's message (as defined in Section 2 of the Offer to Purchase (as defined below)) is utilized, if delivery of shares is to be made by book-entry transfer to an account maintained by the Purchaser at the book-entry transfer facility (as defined in Section 2 of the Offer to Purchase) pursuant to the procedures set forth in Section 2 of the Offer to Purchase. Tendering shareholders whose certificates for shares are not immediately available or who cannot deliver either the certificates for, or a book-entry confirmation (as defined in Section 2 of the Offer to Purchase) with respect to, their shares and all other documents required hereby to the depositary prior to the expiration date (as defined in Section 1 of the Offer to Purchase) must tender their shares in accordance with the guaranteed delivery procedures set forth in Section 2 of the Offer to Purchase. See Instruction 2. Delivery of documents to the book-entry transfer facility does not constitute delivery to the depositary. NOTE: SIGNATURES MUST BE PROVIDED BELOW PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY |_| CHECK HERE IF SHARES ARE BEING TENDERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE PURCHASER WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER): Name of Tendering Institution: ___________________________________________ Account Number: __________________________________________________________ Transaction Code Number:__________________________________________________ |_| CHECK HERE IF SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY, ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING: Name(s) of Registered Owner(s): __________________________________________ Window Ticket Number (if any): ___________________________________________ Date of Execution of Notice of Guaranteed Delivery: ______________________ Name of Institution that Guaranteed Delivery:_____________________________ Account Number: __________________________________________________________ Transaction Code Number: _________________________________________________ Ladies and Gentlemen: The undersigned hereby tenders to Arrow Masters LP, a Delaware limited partnership, Arrow Partners LP, a Delaware limited partnership, and Arrow Offshore, Ltd., a Cayman Islands exempted company (collectively "Purchaser"), the above-described common shares, par value $0.001 per share (the "shares"), of W.P. Stewart & Co., Ltd., a Bermuda exempted company (the "Company"), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 28, 2008 (the "Offer to Purchase"), and in this letter of transmittal (which, as amended or supplemented from time to time, together constitute the "offer"). The undersigned understands that Purchaser reserves the right to transfer or assign, in whole or from time to time in part, to one or more of its affiliates the right to purchase all or any portion of the shares tendered pursuant to the offer. Subject to, and effective upon, acceptance for payment of the shares tendered herewith in accordance with the terms of the offer, including, without limitation, Section 13 of the Offer to Purchase, the undersigned hereby sells, assigns and transfers to, or upon the order of, Purchaser all right, title and interest in and to all of the shares that are being tendered hereby (and any and all other shares or other securities issued, paid or distributed or issuable, payable or distributable in respect of such shares on or after May 28, 2008) and irrevocably constitutes and appoints Computershare (the "depositary") the true and lawful agent, attorney-in-fact and proxy of the undersigned with respect to such shares (and any such other shares or securities), with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest) to (a) deliver such certificates for such shares (and any such other shares or securities) or transfer ownership of such shares (and any such other shares or securities) on the account books maintained by the book- entry transfer facility, together, in either case, with appropriate evidences of transfer, to the depositary for the account of the Purchaser, (b) present such shares (and any such other shares or securities) for transfer on the books of the Company and, (c) receive all benefits and otherwise exercise all rights of beneficial ownership of such shares (and any such other shares or securities), all in accordance with the terms and subject to the conditions of the offer. The undersigned irrevocably appoints Mal Serure, Alexandre von Furstenberg and any other designees of Purchaser as such undersigned's agents, attorneys-in-fact and proxies, with full power of substitution, to the full extent of such shareholder's rights with respect to the shares tendered by such shareholder and accepted for payment by Purchaser. All such powers of attorney and proxies shall be considered irrevocable and coupled with an interest. Such appointment will be effective when, and only to the extent that, Purchaser accepts such shares for payment. Upon such acceptance for payment, all prior powers of attorneys, proxies and consents given by such shareholder with respect to such shares will be revoked without further action, and no subsequent powers of attorney and proxies may be given nor any subsequent written consents executed (and, if given or executed, will not be deemed effective). The designees of Purchaser will, with respect to the shares for which such appointment is effective, be empowered to exercise all voting and other rights of such shareholder as they in their sole discretion may deem proper at any annual or special meeting of the Company's shareholders or any adjournment or postponement thereof, by written consent in lieu of any such meeting or otherwise. Purchaser reserves the right to require that, in order for the shares to be deemed validly tendered, immediately upon Purchaser's payment for such shares, except as otherwise noted in the Offer to Purchase, Purchaser must be able to exercise full voting rights with respect to such shares (and any such other shares or securities), including, without limitation, voting at any meeting of shareholders. The undersigned hereby represents and warrants that (a) the undersigned has full power and authority to tender, sell, assign and transfer the undersigned's shares (and any and all other shares or other securities issued or issuable in respect thereof on or after May 28, 2008) tendered hereby, and (b) when the shares are accepted for payment by Purchaser, Purchaser will acquire good, marketable and unencumbered title to the shares (and any such other shares or securities), free and clear of all liens, restrictions, charges and encumbrances, and the same will not be subject to any adverse claim or right and will not have been transferred to Purchaser in violation of any contractual or other restriction on the transfer thereof. The undersigned, upon request, will execute and deliver any additional documents deemed by the depositary or Purchaser to be necessary or desirable to complete the sale, assignment and transfer of the shares tendered hereby (and any such other shares or securities). Except as stated in the Offer to Purchase this tender is irrevocable. All authority herein conferred or agreed to be conferred shall not be affected by and shall survive the death or incapacity of the undersigned and any obligation of the undersigned hereunder shall be binding upon the heirs, executors, administrators, personal representatives, successors and assigns of the undersigned. Tenders of shares made pursuant to the offer are irrevocable, except that shares tendered pursuant to the offer may be withdrawn at any time prior to the expiration date (as defined in the Offer to Purchase), and, unless theretofore accepted for payment by Purchaser pursuant to the offer, may also be withdrawn at any time after July 27, 2008. See Section 3 of the Offer to Purchase. The undersigned understands that tenders of shares pursuant to any of the procedures described in Section 2 of the Offer to Purchase and in the instructions hereto will constitute a binding agreement between the undersigned and Purchaser upon the terms and subject to the conditions set forth in the offer, including the undersigned's representation that the undersigned owns the shares being tendered. The undersigned understands that if more than 19,902,000 shares are validly tendered prior to the expiration of the offer and not validly withdrawn in accordance with Section 3 of the Offer to Purchase, shares so tendered and not validly withdrawn shall be accepted for payment on a pro rata basis according to the number of shares validly tendered and not withdrawn by the expiration date (with appropriate adjustments to avoid the purchase of fractional shares). Unless otherwise indicated herein under "Special Payment Instructions," please issue the check for the purchase price and/or issue or return any certificate(s) for shares not tendered or not accepted for payment in the name(s) of the registered holder(s) appearing under "Description of Shares Tendered." Similarly, unless otherwise indicated herein under "Special Delivery Instructions," please mail the check for the purchase price and/or any share certificate(s) not tendered or not accepted for payment (and accompanying documents, as appropriate) to the address(es) of the registered holder(s) appearing under "Description of Shares Tendered." In the event that both the "Special Delivery Instructions" and the "Special Payment Instructions" are completed, please issue the check for the purchase price and/or any share certificate(s) not tendered or accepted for payment in the name of, and deliver such check and/or such share certificates to, the person or persons so indicated. Unless otherwise indicated herein under "Special Payment Instructions," please credit any shares tendered herewith by book-entry transfer that are not accepted for payment by crediting the account at the book-entry transfer facility designated above. The undersigned recognizes that Purchaser has no obligation, pursuant to the Special Payment Instructions, to transfer any shares from the name(s) of the registered holder(s) thereof if Purchaser does not accept for payment any of the shares so tendered. |_| CHECK HERE IF ANY SHARE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE BEEN LOST, STOLEN OR DESTROYED AND SEE INSTRUCTION 11. Number of Shares represented by lost, stolen or destroyed Share Certificates: - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
- ------------------------------------------------------------ ---------------------------------------------------- SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS (See Instructions 1, 5, 6 and 7) (See Instructions 1, 5, 6 and 7) To be completed ONLY if certificate(s) for shares not To be completed ONLY if certificate(s) for tendered or accepted for payment and/or the check for the shares not tendered or accepted for payment and/or purchase price of shares accepted for payment are to be the check for the purchase price of shares issued in the name of someone other than the undersigned accepted for payment are to be sent to someone or if shares tendered by book-entry transfer which are not other than the undersigned or to the undersigned accepted for payment are to be returned by credit to an at an address other than that shown above. account maintained at the book-entry transfer facility other than designated above. Mail: |_| check |_| certificates to: Issue: |_| check |_| certificates to: Name _______________________________________________ (Please print) Name _______________________________________________________ (Please print) Address ____________________________________________ Address ____________________________________________________ ____________________________________________________ (Include zip code) ____________________________________________________________ (Include zip code) ____________________________________________________ (Taxpayer Identification or Social Security No.) ____________________________________________________________ (See Substitute Form W-9) (Taxpayer Identification or Social Security No.) (See Substitute Form W-9) |_| Credit shares tendered by book-entry transfer that are not accepted for payment to DTC to the account set forth above. ____________________________________________________________ (DTC Account No.) ____________________________________________________________ ____________________________________________________________ - ------------------------------------------------------------ ----------------------------------------------------
- -------------------------------------------------------------------------------- SIGN HERE (and Complete Substitute Form W-9) ________________________________________________________________________________ ________________________________________________________________________________ (Signature(s) of Shareholder(s) Dated: _____________________________, ____ (Must be signed by the registered holder(s) exactly as name(s) appear(s) on share certificate(s) or on a security position listing or by person(s) authorized to become registered holder(s) by share certificates and documents transmitted herewith. If signature is by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, please provide the following information and see Instruction 5.) Name(s) ________________________________________________________________________ ________________________________________________________________________ (Please print) Capacity (full title) __________________________________________________________ Address ________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (Include zip code) Area Code and Telephone Number _________________________________________________ Taxpayer Identification or Social Security No. _________________________________ (See Substitute Form W-9) Guarantee of Signature(s) (See Instruction 1 and 5) Authorized Signature ___________________________________________________________ Name ___________________________________________________________________________ (Please print) Name of Firm ___________________________________________________________________ Address (Include Zip Code) Area Code and Telephone Number _________________________________________________ Dated: _____________________________, ____ - --------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------- PAYER'S NAME: Computershare, as depositary - ------------------------------------------------------------------------------------------------------------------- Part 1 - Please provide your TIN in the box at the right and certify by signing and Social Security Number dating below. OR Employer Identification Number SUBSTITUTE Form W-9 ______________________________ Department of the Treasury -------------------------------------------------------------- --------------------- Internal Revenue Service Part 2 - Certification - Under penalties of perjury, I Part 3 certify that: Payer's Request for Taxpayer (1) The number shown on this form is my correct Awaiting TIN |_| Identification Number Taxpayer Identification Number (or I am waiting for a number ("TIN") to be issued to me) and ------------------------------------------------------------------------------------ (2) I am not subject to withholding because (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (the "IRS") that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding. ------------------------------------------------------------------------------------ Certification instructions - You must cross out item (2) in Part 2 above if you have been notified by the IRS that you are subject to backup withholding because of under-reporting interest or dividends on your tax return. However, if after being notified by the IRS that you were subject to backup withholding you received another notification from the IRS stating that you are no longer subject to backup withholding, do not cross out such item (2). - ------------------------------------------------------------------------------------------------------------------- Signature: _____________________________________________________________________________ Date: ___________________ - -------------------------------------------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 28% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9. - -------------------------------------------------------------------------------- CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER - -------------------------------------------------------------------------------- I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office, or (b) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number by the time of payment, 28% of all reportable payments made to me will be withheld. Signature __________________________________________________ Date: __________ INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER 1. Guarantee of Signatures No signature guarantee is required on this letter of transmittal (a) if this letter of transmittal is signed by the registered holder(s) (which term, for purposes of this Instruction 1, includes any participant in the book-entry transfer facility's system whose name appears on a security position listing as the owner of the shares) of shares tendered herewith, unless such registered holder(s) has completed either the box entitled "Special Payment Instructions" or the box entitled "Special Delivery Instructions" on this letter of transmittal or (b) if such shares are tendered for the account of a firm that is a member in good standing of a recognized Medallion Program approved by the Securities Transfer Association, Inc., including the Security Transfer Agents Medallion Program, the New York Stock Exchange, Inc. Medallion Signature Guarantee Program or the Stock Exchanges Medallion Program, or is otherwise an "eligible guarantor institution," as that term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (each, an "eligible institution"). In all other cases, all signatures on this letter of transmittal must be guaranteed by an eligible institution. See Instruction 5. 2. Requirements of Tender This letter of transmittal is to be completed by shareholders either if certificates are to be forwarded herewith or, unless an agent's message (as defined below) is utilized, if delivery of shares is to be made pursuant to the procedures for book-entry transfer set forth in Section 2 of the Offer to Purchase. For a shareholder validly to tender shares pursuant to the offer, either (a) a letter of transmittal (or a facsimile thereof), properly completed and duly executed, together with any required signature guarantees, or, in the case of a book-entry transfer, an agent's message, and any other required documents, must be received by the depositary at one of its addresses set forth herein prior to the expiration date and either certificates for tendered shares must be received by the depositary at one of such addresses or shares must be delivered pursuant to the procedures for book-entry transfer set forth herein (and a book-entry confirmation must be received by the depositary), in each case prior to the expiration date, or (b) the tendering shareholder must comply with the guaranteed delivery procedures set forth below and in Section 2 of the Offer to Purchase. Shareholders whose certificates for shares are not immediately available or who cannot deliver their certificates and all other required documents to the depositary or complete the procedures for book-entry transfer prior to the expiration date may tender their shares by properly completing and duly executing the notice of guaranteed delivery pursuant to the guaranteed delivery procedures set forth in Section 2 of the Offer to Purchase. Pursuant to such procedures, (a) such tender must be made by or through an eligible institution, (b) a properly completed and duly executed notice of guaranteed delivery, substantially in the form provided by the Purchaser, must be received by the depositary prior to the expiration date and (c) the certificates for all tendered shares in proper form for transfer (or a book-entry confirmation with respect to all such shares), together with a letter of transmittal (or facsimile thereof), properly completed and duly executed, with any required signature guarantees, or, in the case of a book-entry transfer, an agent's message, and any other required documents, must be received by the depositary, in each case within three trading days after the date of execution of such notice of guaranteed delivery as provided in Section 2 of the Offer to Purchase. A "trading day" is any day on which the New York Stock Exchange is open for business. The term "agent's message" means a message transmitted by the book-entry transfer facility to, and received by, the depositary and forming a part of a book-entry confirmation, which states that such book-entry transfer facility has received an express acknowledgment from the participant in the book-entry transfer facility tendering the shares that such participant has received and agrees to be bound by the terms of the letter of transmittal and that the Purchaser may enforce such agreement against such participant. THE METHOD OF DELIVERY OF SHARES, THIS LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY, IS AT THE SOLE ELECTION AND RISK OF THE TENDERING SHAREHOLDER. SHARES WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. No alternative, conditional or contingent tenders will be accepted and no fractional shares will be purchased. All tendering shareholders, by execution of this letter of transmittal (or a facsimile hereof), waive any right to receive any notice of the acceptance of their shares for payment. 3. Inadequate Space If the space provided herein is inadequate, the certificate numbers and/or the number of shares should be listed on a separate schedule attached hereto. 4. Partial Tenders (Not Applicable to Shareholders Who Tender by Book-Entry Transfer) If fewer than all the shares represented by any certificate submitted to the depositary are to be tendered, fill in the number of shares that are to be tendered in the box entitled "Number of Shares Tendered." In any such case, new certificate(s) for the remainder of the shares that were evidenced by the old certificate(s) will be sent to the registered holder(s), unless otherwise provided in the appropriate box on this letter of transmittal, as soon as practicable after the acceptance for payment of, and payment for, the shares tendered herewith. All shares represented by certificates delivered to the depositary will be deemed to have been tendered unless otherwise indicated. 5. Signatures on Letter of Transmittal, Stock Powers and Endorsements If this letter of transmittal is signed by the registered holder(s) of the shares tendered hereby, the signature(s) must correspond with the name(s) as written on the face of the certificate(s) without any change whatsoever. If any of the shares tendered hereby are owned of record by two or more joint owners, all such persons must sign this letter of transmittal. If any shares tendered hereby are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate letters of transmittal as there are different registrations of certificates. If this letter of transmittal or any certificate or stock power is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and proper evidence satisfactory to the Purchaser of the authority of such person so to act must be submitted with this letter of transmittal. If this letter of transmittal is signed by the registered owner(s) of the shares tendered hereby, no endorsements of certificates or separate stock powers are required unless payment of the purchase price is to be made, or certificates for shares not tendered or accepted for payment are to be issued, to a person other than the registered owner(s). Signatures on any such certificates or stock powers must be guaranteed by an eligible institution. If this letter of transmittal is signed by a person other than the registered owner(s) of the shares tendered hereby, the certificate(s) representing such shares must be properly endorsed for transfer or accompanied by appropriate stock powers, in either case signed exactly as the name(s) of the registered owner(s) appear(s) on the certificates(s). The signature(s) on any such certificate(s) or stock power(s) must be guaranteed by an eligible institution. 6. Stock Transfer Taxes The Purchaser will pay any stock transfer taxes with respect to the transfer and sale of shares to it pursuant to the offer. If, however, payment of the purchase price is to be made to, or if shares not tendered or accepted for payment are to be registered in the name of, any person(s) other than the registered owner(s), or if shares tendered hereby are registered in the name(s) of any person(s) other than the person(s) signing this letter of transmittal, the amount of any stock transfer taxes (whether imposed on the registered owner(s) or such person(s)) payable on account of the transfer to such person(s) will be deducted from the purchase price unless satisfactory evidence of the payment of such taxes or exemption therefrom is submitted with this letter of transmittal. Except as provided in this Instruction 6, it will not be necessary for transfer tax stamps to be affixed to the certificates listed in this letter of transmittal. 7. Special Payment and Delivery Instructions If a check is to be issued in the name of, and/or certificates for shares not accepted for payment are to be returned to, a person other than the signer of this letter of transmittal or if a check is to be sent and/or such certificates are to be returned to a person other than the signer of this letter of transmittal or to an address other than that shown above, the appropriate boxes on this letter of transmittal should be completed. 8. Waiver of Conditions The Purchaser reserves the right, subject to the applicable rules and regulations of the SEC, to waive any of the specified conditions of the offer, in whole or in part, in the case of any shares tendered. 9. Backup Withholding U.S. Persons A shareholder who or which is a United States citizen or resident alien individual, a domestic corporation, a domestic partnership, a domestic trust or a domestic estate (collectively, "United States persons") as those terms are defined in the Internal Revenue Code and Income Tax Regulations, should complete the following: In order to avoid backup withholding of U.S. federal income tax on payments of cash pursuant to the offer, a shareholder surrendering shares in the offer must, unless an exemption applies, provide the depositary with such shareholder's correct taxpayer identification number or social security number ("TIN") on Substitute Form W-9 below in this letter of transmittal and certify under penalties of perjury that such TIN is correct and that such shareholder is not subject to backup withholding. If a shareholder does not provide such shareholder's correct TIN or fails to provide the certifications described above, the Internal Revenue Service (the "IRS") may impose a $50 penalty on such shareholder and payment of cash to such shareholder pursuant to the offer may be subject to backup withholding of 28%. Backup withholding is not an additional income tax. Rather, the amount of the backup withholding can be credited against the U.S. federal income tax liability of the person subject to the backup withholding, provided that the required information is given to the IRS. If backup withholding results in an overpayment of tax, a refund may be obtained from the IRS. A tendering shareholder is required to give the depositary the TIN of the record owner of the shares being tendered. If the shares are held in more than one name or are not in the name of the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for additional guidance on which number to report. The box in part 3 of the Substitute Form W-9 may be checked if the tendering shareholder has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future. If the box in part 3 is checked, the shareholder or other payee must also complete the Certificate of Awaiting Taxpayer Identification Number below in order to avoid backup withholding. Notwithstanding that the box in part 3 is checked and the Certificate of Awaiting Taxpayer Identification Number is completed, the depositary will withhold 28% on all payments made prior to the time a properly certified TIN is provided to the depositary. However, such amounts will be refunded to such shareholder if a TIN is provided to the depositary within 60 days. Foreign Persons Foreign shareholders (i.e., shareholders that are not "United States persons" as defined in Instruction 9 above) should complete and sign the main signature form and the appropriate Form W-8, Certificate of Foreign Status, a copy of which may be obtained from the depositary, in order to avoid backup withholding. 10. Requests for Assistance or Additional Copies Questions and requests for assistance or additional copies of the Offer to Purchase, this letter of transmittal, the notice of guaranteed delivery and the Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 may be directed to the information agent at its address set forth on the last page of this letter of transmittal. 11. Lost, Destroyed or Stolen Certificates If any certificate representing shares has been lost, destroyed or stolen, the shareholder should promptly notify the information agent at the phone number this letter of transmittal provides. The shareholder will then be instructed by the information agent as to the steps that must be taken in order to replace the certificate. This letter of transmittal and related documents cannot be processed until the procedures for replacing lost or destroyed certificates have been followed. IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A MANUALLY SIGNED FACSIMILE HEREOF), TOGETHER WITH ANY REQUIRED SIGNATURE GUARANTEES, OR, IN THE CASE OF A BOOK-ENTRY TRANSFER, AN AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE AND EITHER CERTIFICATES FOR TENDERED SHARES MUST BE RECEIVED BY THE DEPOSITARY OR SHARES MUST BE DELIVERED PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER, IN EACH CASE PRIOR TO THE EXPIRATION DATE, OR THE TENDERING STOCKHOLDER MUST COMPLY WITH THE PROCEDURES FOR GUARANTEED DELIVERY. This letter of transmittal, certificates for shares and any other required documents should be sent or delivered by each shareholder of the Company or such shareholder's broker, dealer, commercial bank, trust company or other nominees to the depositary at one of its addresses set forth below. The Depositary for the Offer to Purchase is: [COMPUTERSHARE LOGO] By Mail: By Overnight Courier: Computershare Computershare c/o Voluntary Corporate Actions c/o Voluntary Corporate Actions P.O. Box 859208 161 Bay State Drive Braintree, MA 02185-9208 Braintree, MA 02184 DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY. Questions and requests for assistance may be directed to the information agent at the address set forth below. Additional copies of the Offer to Purchase, this letter of transmittal and the notice of guaranteed delivery may be obtained from the information agent. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance concerning the offer. The Information Agent for the Offer is: [MACKENZIE PARTNERS, INC. LOGO] 105 Madison Ave. New York, New York 10016 proxy@mackenziepartners.com (212) 929-5500 (call collect) or Toll-Free (800) 322-2885 EX-99.(A)(3) 4 e603876_ex99-a3.txt Notice of Guaranteed Delivery to Tender Common Shares of W.P. Stewart & Co., Ltd. This notice of guaranteed delivery or one substantially equivalent hereto must be used to accept the Offer (as defined below) if certificates for Shares (as defined below) are not immediately available or the certificates for Shares and all other required documents cannot be delivered to Computershare (the "depositary") on or prior to the expiration date (as defined in the Offer to Purchase) or if the procedure for delivery by book-entry transfer cannot be completed on a timely basis. This instrument may be delivered by hand or transmitted by facsimile transmission or mailed to the depositary. See Section 2 of the Offer to Purchase. The Depositary for the Offer is: [LOGO] Computershare
By Mail: By Facsimile Transmission: By Overnight Courier: Computershare For Eligible Institutions Only: Computershare c/o Voluntary Corporate Actions (781) 930-4942 c/o Voluntary Corporate Actions P.O. Box 859208 161 Bay State Drive Braintree, MA 02185-9208 For Confirmation Only Telephone: Braintree, MA 02184 (781) 930-4900
Delivery of this notice of guaranteed delivery to an address other than as set forth above or transmission of instructions via facsimile transmission other than as set forth above will not constitute a valid delivery to the depositary. This form is not to be used to guarantee signatures. If a signature on a letter of transmittal is required to be guaranteed by an eligible institution under the instructions thereto, such signature guarantee must appear in the applicable space provided in the signature box in the letter of transmittal. The guarantee on the reverse side must be completed. Ladies and Gentlemen: The undersigned hereby tender(s) to Arrow Masters LP, a Delaware limited partnership, Arrow Partners LP, a Delaware limited partnership, and Arrow Offshore, Ltd., a Cayman Islands exempted company, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 28, 2008 (the "Offer to Purchase"), and in the related letter of transmittal (which, as amended or supplemented from time to time, together constitute the "Offer"), receipt of which is hereby acknowledged, the number of common shares, par value $.001 per share (the "Shares"), of W.P. Stewart & Co., Ltd., a Bermuda exempted company, indicated below pursuant to the guaranteed delivery procedure set forth in Section 2 of the Offer to Purchase. - -------------------------------------------------------------------------------- Number of Tendered Shares: ________________________________________________________________________________ Certificate No.(s) (if available): ________________________________________________________________________________ Check box if shares will be tendered by book-entry transfer: |_| Name of Tendering Institution: ________________________________________________________________________________ The Depositary Trust Company Account Number: ________________________________________________________________________________ Dated: __________________________________________________________________ , 2007 Name(s) of Record Holder(s): ________________________________________________________________________________ (Please Print) Address(es): ________________________________________________________________________________ (Zip Code) Area Code and Telephone No.(s): ________________________________________________________________________________ SIGN HERE Signature(s): ________________________________________________________________________________ - -------------------------------------------------------------------------------- GUARANTEE (NOT TO BE USED FOR SIGNATURE GUARANTEE) The undersigned, a firm which is a bank, broker, dealer, credit union, savings association or other entity which is a member in good standing of a recognized Medallion Program approved by the Securities Transfer Association Inc., including the Securities Transfer Agents Medallion Program (STAMP), the Stock Exchange Medallion Program (SEMP) and the New York Stock Exchange Medallion Signature Program (MSP) or any other "eligible guarantor institution" (as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended), guarantees (1) that the above named person(s) "own(s)" the shares tendered hereby within the meaning of Rule 14e-4 under the Exchange Act, (2) that such tender of shares complies with Rule 14e-4 under the Exchange Act and (3) to deliver to the Company either the certificates evidencing all tendered shares, in proper form for transfer, or a book-entry confirmation (as defined in the Offer to Purchase) with respect to such shares, in either case, together with the letter of transmittal (or a facsimile thereof), properly completed and duly executed, with any required signature guarantees or an agent's message (as defined in the Offer to Purchase) in the case of a book-entry delivery, and any other required documents, all within three business days after the date hereof. The eligible guarantor institution that completes this form must communicate the guarantee to the depositary and must deliver the letter of transmittal and share certificates to the Company within the time period indicated herein. Failure to do so may result in financial loss to such eligible guarantor institution. - -------------------------------------------------------------------------------- Name of Firm: ________________________________________________________________________________ (Authorized Signature) Address: ________________________________________________________________________________ (Zip Code) Title: ________________________________________________________________________________ Name: ________________________________________________________________________________ (Please Print or Type) Area Code and Telephone No.: ________________________________________________________________________________ Dated: __________________________________________________________________ , 2008 - -------------------------------------------------------------------------------- NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE. SHARE CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL. EX-99.(A)(4) 5 e603876_ex99-a4.txt Offer to Purchase for Cash Up to 19,902,000 Common Shares of W.P. Stewart & Co., Ltd. at $1.60 Net Per Share - -------------------------------------------------------------------------------- THE OFFER, WITHDRAWAL RIGHTS AND PRORATION PERIOD WILL EXPIRE AT 5:00 P.M., EASTERN TIME, ON WEDNESDAY, JULY 9, 2008 UNLESS THE OFFER IS EXTENDED - -------------------------------------------------------------------------------- May 28, 2008 To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees: We have been appointed by Arrow Masters LP, a Delaware limited partnership, Arrow Partners LP, a Delaware limited partnership, and Arrow Offshore, Ltd., a Cayman Islands exempted company (collectively "Purchaser"), to act as Information Agent in connection with Purchaser's offer to purchase up to 19,902,000 common shares, par value $.001 per share (the "shares"), of W.P. Stewart & Co., Ltd. (the "Company"), at a purchase price of $1.60 per share, net to the seller in cash (subject to applicable withholding of United States federal, state and local taxes), less the per share amount of dividends, if any, declared and payable by the Company between May 28, 2008 and the date on which the Purchaser becomes record holder of the shares, without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 28, 2008 (the "Offer to Purchase"), and in the related letter of transmittal (which, as amended or supplemented from time to time, together constitute the "Offer") enclosed herewith. Holders of shares whose certificates for such shares are not immediately available or who cannot deliver their share certificates and all other required documents to Computershare, the depositary for the Offer (the "depositary") on or prior to the expiration date (as defined in the Offer to Purchase), or who cannot complete the procedure for book entry transfer on a timely basis, must tender their shares according to the guaranteed delivery procedures set forth in Section 2 of the Offer to Purchase. Please furnish copies of the enclosed materials to those of your clients for whose accounts you hold shares registered in your name or in the name of your nominee. Enclosed herewith for your information and forwarding to your clients are copies of the following documents: 1. The Offer to Purchase. 2. The letter of transmittal to tender shares for your use and for the information of your clients. Facsimile copies of the letter of transmittal may be used to tender shares. 3. The Notice of Guaranteed Delivery for shares to be used to accept the Offer if share certificates are not immediately available or if such certificates and all other required documents cannot be delivered to the Company on or prior to the expiration date or if the procedure for book-entry transfer cannot be completed by the expiration date. 4. A printed form of letter which may be sent to your clients for whose accounts you hold shares registered in your name or in the name of your nominee, with space provided for obtaining such clients' instructions with regard to the Offer. 5. Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. 6. A return envelope addressed to the Company. Your prompt action is requested. Certain conditions to the Offer are described in Section 13 to the Offer to Purchase. We urge you to contact your clients as promptly as possible. Please note that the Offer and withdrawal rights expire at 5:00 pm, Eastern time, on Wednesday, July 9, 2008, unless the Offer is extended. The Offer is being made pursuant to the terms of an Investment Agreement dated as of May 20, 2008, between the Purchaser and the Company. In order to take advantage of the Offer, (1) a duly executed and properly completed letter of transmittal (or a facsimile thereof) and any required signature guarantees, or an agent's message (as defined in the Offer to Purchase) in connection with a book-entry delivery of shares, and other required documents should be sent to the depositary, and (2) either share certificates representing the tendered shares should be delivered to the depositary or such shares should be tendered by book-entry transfer and a book-entry confirmation (as defined in the Offer to Purchase) with respect to such shares should be delivered to the depositary, all in accordance with the instructions set forth in the letter of transmittal and the Offer to Purchase. Holders of shares whose share certificates are not immediately available or who cannot deliver their share certificates and all other required documents to the depositary on or prior the expiration date of the Offer, or who cannot complete the procedure for delivery by book-entry transfer on a timely basis, must tender their shares according to the guaranteed delivery procedures set forth in Section 2 of the Offer to Purchase. In all cases, payment for shares accepted for payment pursuant to the offer will be made only after timely receipt by the depositary of (1) the certificates for (or a timely book-entry confirmation (as defined in the Offer to Purchase) with respect to) such shares, (2) a letter of transmittal (or a facsimile thereof), properly completed and duly executed, with any required signature guarantees, or, in the case of a book-entry transfer effected pursuant to the procedures set forth in section 2 of the Offer to Purchase, an agent's message (as defined in the Offer to Purchase), and (3) any other documents required by the letter of transmittal. Accordingly, tendering shareholders may be paid at different times depending on when certificates for shares or book-entry confirmations with respect to shares are actually received by the depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF OR AMENDMENT TO THE OFFER OR ANY DELAY IN PAYING FOR SUCH SHARES. The Purchaser will not pay any commissions or fees to any broker, dealer or other person (other than the depositary and MacKenzie Partners, Inc. (the "information agent") (as described in the Offer to Purchase)) for soliciting tenders of shares pursuant to the Offer. The Purchaser will, however, upon request, reimburse you for customary clerical and mailing expenses incurred by you in forwarding any of the enclosed materials to your clients. The Purchaser will pay or cause to be paid any stock transfer taxes payable on the transfer of shares to it, except as otherwise provided in Instruction 6 of the Letter of Transmittal. Inquiries you may have with respect to the Offer should be addressed to the undersigned information agent, at the respective addresses and telephone numbers set forth on the back cover of the Offer to Purchase. Additional copies of the enclosed materials may be obtained from the information agent. Very truly yours, MACKENZIE PARTNERS, INC. Nothing contained herein or in the enclosed documents shall render you or any other person, the agent of the Purchaser, the depositary or the information agent, or any affiliate of any of them, or authorize you or any other person to make any statement or use any document on behalf of any of them in connection with the Offer other than the enclosed documents and the statements contained therein. EX-99.(A)(5) 6 e603876_ex99-a5.txt Offer to Purchase for Cash Up to 19,902,000 Common Shares of W.P. Stewart & Co., Ltd. at $1.60 Net Per Share - -------------------------------------------------------------------------------- THE OFFER, WITHDRAWAL RIGHTS AND PRORATION PERIOD WILL EXPIRE AT 5:00 P.M., EASTERN TIME, ON WEDNESDAY, JULY 9, 2008 UNLESS THE OFFER IS EXTENDED - -------------------------------------------------------------------------------- May 28, 2008 To Our Clients: Enclosed for your consideration is an Offer to Purchase dated May 28, 2008 (the "Offer to Purchase"), and the related letter of transmittal, relating to an offer by Arrow Masters LP, a Delaware limited partnership, Arrow Partners LP, a Delaware limited partnership, and Arrow Offshore, Ltd., a Cayman Islands exempted company (collectively "the Purchaser"), to purchase up to 19,902,000 shares of common stock, par value $.001 per share (the "shares"), of W.P. Stewart & Co., Ltd. (the "Company"), at a purchase price of $1.60 per share, net to the seller in cash (subject to applicable withholding of United States federal, state and local taxes), less the per share amount of dividends, if any, declared and payable by the Company between May 28, 2008 and the date on which the Purchaser becomes record holder of the shares, without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase and in the related letter of transmittal (which, as amended or supplemented from time to time, together constitute the "Offer") enclosed herewith. We (or our nominees) are the holder of record of shares held by us for your account. A tender of such shares can be made only by us as the holder of record and pursuant to your instructions. The letter of transmittal is furnished to you for your information only and cannot be used by you to tender shares held by us for your account. We request instructions as to whether you wish to have us tender on your behalf any or all of such shares held by us for your account, pursuant to the terms and subject to the conditions set forth in the Offer to Purchase. Your attention is directed to the following: 1. The offer price is $1.60 per share, net to the seller, in cash (subject to applicable withholding of United States federal, state and local taxes), less the per share amount of dividends, if any, declared and payable by the Company between May 28, 2008 and the date on which the Purchaser becomes record holder of the shares, without interest thereon, on the terms and subject to the conditions set forth in the Offer. 2. The Offer is made for up to 19,902,000 shares. 3. The Offer is being made pursuant to the terms of an Investment Agreement, dated as of May 20, 2008, between the Company and the Purchaser. 4. Pursuant to the Investment Agreement, following the expiration date of the Offer, the Purchaser will (x) purchase from the Company 5,010,000 newly issued shares of the Company and, (y) if the Purchaser does not hold at least 13,840,000 shares following the Offer and such purchase, have the option to acquire up to an additional 2,430,000 newly issued shares of the Company, in each case at a purchase price of $1.60 per share. 5. The Company's Board of Directors unanimously (with one Director abstaining) authorized the Investment Agreement and determined that the Investment Agreement and the transactions contemplated thereby are in the best interests of the Company's shareholders and that the Offer Price is fair to unaffiliated shareholders of the Company. However, the Board of Directors has determined to remain neutral and is taking no position as to whether shareholders should tender their shares in the Offer. 6. The Offer and withdrawal rights will expire at 5:00 pm, Eastern time, on July 9, 2008 unless the Offer is extended. 7. Tendering shareholders will not be obligated to pay brokerage fees or commissions or, except as set forth in Instruction 6 of the Letter of Transmittal, stock transfer taxes on the purchase of shares pursuant to the Offer. 8. The Purchaser will pay any stock transfer taxes with respect to the transfer and sale of shares to it or its order pursuant to the Offer, except as otherwise provided in Instruction 6 of the letter of transmittal. 9. The Offer is conditioned upon the conditions to the Offer described in Section 13 in the Offer to Purchase. In all cases, payment for shares accepted for payment pursuant to the Offer will be made only after timely receipt by Computershare (the "depositary") of (1) the certificates for (or a timely book-entry confirmation (as defined in the Offer to Purchase) with respect to) such shares, (2) a letter of transmittal (or a facsimile thereof), properly completed and duly executed, with any required signature guarantees, or, in the case of a book-entry transfer effected pursuant to the procedures set forth in Section 2 of the Offer to Purchase, an agent's message (as defined in the Offer to Purchase), and (3) any other documents required by the letter of transmittal. Accordingly, tendering shareholders may be paid at different times depending on when certificates for shares or book-entry confirmations with respect to shares are actually received by the depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF OR AMENDMENT TO THE OFFER OR ANY DELAY IN PAYING FOR SUCH SHARES The Offer is being made solely by the Offer to Purchase and the related letter of transmittal, and is being made to all holders of shares. The Purchaser is not aware of any state where the making of the Offer is prohibited by administrative or judicial action pursuant to any valid state statute. If the Purchaser becomes aware of any valid state statute prohibiting the making of the Offer or the acceptance of shares pursuant thereto, the Purchaser will make a good faith effort to comply with any such state statute. If, after such good faith effort, the Purchaser cannot comply with such state statute, the Offer will not be made to nor will tenders be accepted from or on behalf of the holders of shares in such state. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of the Purchaser by one or more registered brokers or dealers that are licensed under the laws of such jurisdiction. If you wish to have us tender any or all of the shares held by us for your account, please instruct us by completing, executing and returning to us the instruction form contained in this letter. If you authorize a tender of your shares, all such shares will be tendered unless otherwise specified in such instruction form. Your instructions should be forwarded to us in ample time to permit us to submit a tender on your behalf on or prior to the expiration of the offer. Instructions with respect to the Offer to Purchase for Cash Up to 19,902,000 Common Shares of W.P. Stewart & Co., Ltd. at $1.60 Net Per Share The undersigned acknowledge(s) receipt of your letter enclosing the Offer to Purchase dated May 28, 2008 (the "Offer to Purchase"), and the related letter of transmittal, relating to the offer by Arrow Masters LP, a Delaware limited partnership, Arrow Partners LP, a Delaware limited partnership, and Arrow Offshore, Ltd., a Cayman Islands exempted company, to purchase up to 19,902,000 of the issued and outstanding common shares, par value $.001 per share (the "shares") of W.P. Stewart & Co., Ltd., a Bermuda exempted company. This will instruct you to tender the number of shares indicated below (or, if no number is indicated below, all shares) which are held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Offer to Purchase and in the related letter of transmittal furnished to the undersigned. - -------------------------------------------------------------------------------- Number of Shares to be Tendered* SIGN HERE ________________________________ ____________________________________________ Dated: __________________ , 2008 ____________________________________________ Signature(s) ____________________________________________ Please print ____________________________________________ Address ____________________________________________ Area Code and Tel ____________________________________________ Tax Identification or Social Security Number - ---------- * Unless otherwise indicated, it will be assumed that all of your shares held by us for your account are to be tendered. - -------------------------------------------------------------------------------- EX-99.(A)(6) 7 e603876_ex99-a6.txt GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 Guidelines for Determining the Proper Identification Number to Give the Payer. Social Security numbers have nine digits separated by two hyphens: i.e. 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e. 00-0000000. The table below will help determine the number to give the payer.
================================================== =================================================================== FOR THIS TYPE OF ACCOUNT: GIVE THE SOCIAL SECURITY NUMBER OF-- ================================================== =================================================================== 1. An individual's account The individual 2. Two or more individuals (joint account) The actual owner of the account or, if combined funds, the first individual on the account (1) 3. Custodian account of a minor (Uniform Gift to The minor (2) Minors Act) 4. a. The usual revocable savings trust The grantor-trustee (1) (grantor is also trustee) b. So called trust account that is not a legal The actual owner (1) or valid trust under state law 5. Sole proprietorship or single-owner LLC The owner (3) 6. A valid trust, estate, or pension trust The legal entity (Do not furnish taxpayer identification number of the personal representative or trustee unless the legal entity itself is not designated in the account title.) (4) 7. Corporate or LLC electing corporate status on The corporation Form 8832 8. Association, club, religious, charitable, The organization educational, or other tax-exempt organization 9. Partnership or multi-member LLC The partnership 10. A broker or registered nominee The broker or registered nominee 11. Account with the Department of Agriculture The public entity in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments ======================================================================================================================
(1) List first and circle the name of the person whose number you furnish. If only one person on a joint account has a social security number, that person's number must be furnished. (2) Circle the minor's name and furnish the minor's social security number. (3) You must show your individual name, but you may also enter your business or "doing business as" name. You may use either your social security number or your employer identification number (if you have one). (4) List first and circle the name of the legal trust, estate, or pension trust. NOTE: If no name is circled when there is more than one name, the number will be considered to be that of the first name listed. GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 Obtaining A Number If you do not have a taxpayer identification number, obtain Form SS-5, Application for a Social Security Card, at the local Social Security Administration office, or Form SS-4, Application for Employer Identification Number, by calling 1 (800) TAX-FORM and apply for a number. Payees Exempt From Backup Withholding Payees specifically exempted from withholding include: 1. An organization exempt from tax under section 501(a)of the internal Revenue Code of 1986, as amended (the "Code"), an individual retirement account (IRA) or a custodial account under Section 403(b)(7) of the Code, if the account satisfies the requirements of Section 401(f)(2) of the Code. 2. The United States or any of it agencies or instrumentalities; 3. A state, the District of Columbia, a possession of the United States, or a political subdivision or instrumentality; 4. A foreign government and any political subdivision, agencies or instrumentalities; or 5. An international organization or any agencies or instrumentalities. Other Payee that may be exempt form backup withholding include: 6. A corporation; 7. A foreign central bank of issue; 8. A dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States; 9. A futures commission merchant registered with the Commodity Futures Trading Commission; 10. A real estate investment trust; 11. An entity registered at all times during the tax year under the Investment Company Act of 1940; 12. A common trust fund operated by a bank under Section 584(a); 13. A financial institution; 14. A middleman known in the investment community as a nominee or custodian; or 15. A trust exempt from tax under Section 664 or described in Section 4947. The chart below shows types of payments that may be exempt from backup withholding. The chart applies to the exempt recipients listed above, 1 through 15.
============================================================ ========================================================= If the payment is for ... THEN the payment is exempt for ... ============================================================ ========================================================= Interest and dividend payments All exempt recipients except for 9 - ---------------------------------------------------------------------------------------------------------------------- Broker transactions Exempt recipients 1 through 13. Also, a person registered under the Investment Advisers Act of 1940 who regularly acts as a broker - ---------------------------------------------------------------------------------------------------------------------- Barter exchange transactions and patronage dividends Exempt recipients 1 through 5 - ---------------------------------------------------------------------------------------------------------------------- Payments over $600 required to be reported and direct Generally, exempt recipients 1 through 7(2) sales over $5,000(1) ======================================================================================================================
(1) See Form 1099-MISC. Miscellaneous Income, and its instructions (2) However, the following payments made to a corporation (including gross proceeds paid to an attorney under Section 6045 (f), even if the attorney is a corporation) and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys' fees, and payments for services paid by a Federal executive agency. ================================================================================ Certain payments, other than payments of interest, dividends, and patronage dividends, that are exempt from information reporting are also exempt from backup withholding. For details, see Sections 6041, 6041A, 6042, 6044, 6045, 6049, 6050A and 6050N, of the Code and regulations thereunder. EXEMPT PAYEES SHOULD COMPLET A SUBSTITUTE FORM W-9 TO AVOID POSSIBLE ERRONEOUS BACKUP WITHHOLDING. Furnish your taxpayer identification number, write "EXEMPT" on the form, sign and date the form and return to the payer. Privacy Act Notice--Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons who must file information returns with the IRS to report interest, dividends, and certain other income paid to you, mortgage interest you paid, the acquisition or abandonment of secured property, cancellation of debt, or contributions you made to an IRA or Archer MSA. The IRS uses the numbers for identification purposes and to help verify the accuracy of your tax return. The IRS may also provide this information to the Department of Justice for civil an criminal litigation, and to cities, states, and the District of Columbia to carry out their tax laws. We may also disclose this information to other countries under a tax treaty , or to Federal and state agencies to enforce Federal nontax criminal laws and to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Payers must generally withhold 28% of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to a payer. Certain penalties may also apply. Penalties Failure to furnish TIN. If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. Civil penalty for false information with respect to withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty. Criminal penalty for falsifying information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. Misuse of TINs. If the requester discloses or uses TINs in violation of Federal law, the requester may be subject to civil and criminal penalties. FOR ADDITIONAL INFORMATION, CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE. EX-99.(A)(7) 8 e603876_ex99-a7.txt This announcement is neither an offer to purchase nor a solicitation of an offer to sell shares (as defined below). The offer (as defined below) is made solely by the Offer to Purchase, dated May 28, 2008, and the related Letter of Transmittal and any amendments or supplements thereto, and is being made to all holders of shares. The offer is not being made to (nor will tenders be accepted from or on behalf of) holders of shares in any jurisdiction in which the making of the offer or the acceptance thereof would not be in compliance with the laws of such jurisdiction. Notice of Offer to Purchase for Cash Up to 19,902,000 Common Shares of W.P. Stewart & Co., Ltd. at $1.60 NET PER SHARE by ARROW PARTNERS LP, ARROW MASTERS LP, AND ARROW OFFSHORE, LTD. Arrow Partners LP, a Delaware limited partnership, Arrow Masters LP, a Delaware limited partnership, and Arrow Offshore, Ltd., a Cayman Islands corporation (collectively, "Arrow"), are offering to purchase up to 19,902,000 common shares, par value $0.001 per share (the "shares"), of W.P. Stewart & Co., Ltd., a Bermuda exempted company (the "Company"), at $1.60 per share, net to the seller, in cash, without interest thereon (subject to applicable withholding of United States federal, state and local taxes), less the per share amount of distributions, if any, declared or paid on or after May 28, 2008, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 28, 2008 (the "Offer to Purchase"), and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer"). Tendering stockholders will not be charged brokerage fees or commissions on the purchase of shares by Arrow pursuant to the Offer. THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 5:00 P.M., EASTERN TIME, ON WEDNESDAY, JULY 9, 2008, UNLESS THE OFFER IS EXTENDED. This Offer is being made under an Investment Agreement dated as of May 20, 2008 between Arrow and the Company. Pursuant to the Investment Agreement, following the expiration of the Offer, Arrow will purchase from the Company, at a purchase price of $1.60 per share, between 5,010,000 and 7,440,000 newly issued shares of the Company, depending upon the number of shares purchased in the Offer. If the Offer is fully subscribed, following the Offer and Arrow's purchase of shares from the Company, Arrow will own 24,912,000 shares, representing 45% of the outstanding shares of the Company. Arrow is making the Offer and acquiring additional shares from the Company in order to acquire a significant equity stake in the Company. However, pursuant to the Investment Agreement, Arrow has agreed that, in accordance with the terms of the Company's Bye-laws, to the extent it holds more than 24% of the total outstanding shares of the Company it will limit its voting power to 24% of the total outstanding shares of the Company. The Offer is not conditioned upon Arrow obtaining financing. For purposes of the Offer, Arrow will be deemed to have accepted for payment (and thereby purchased) shares validly tendered and not properly withdrawn as, if and when Arrow gives oral or written notice to Computershare (the "Depositary") of its acceptance for payment of such shares pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, payment for shares accepted for payment pursuant to the Offer will be made by deposit of the purchase price therefor with the Depositary, which will act as agent for the tendering shareholders whose shares have been accepted for payment. Upon the deposit of funds with the Depositary for the purpose of making payment to validly tendering shareholders, Arrow's obligation to make such payment shall be satisfied and such tendering shareholders must thereafter look solely to the Depositary for payment of the amounts owed to them by reason of acceptance for payment of shares pursuant to the Offer. In all cases, payment for shares accepted for payment pursuant to the Offer will be made only after timely receipt by the Depositary of (a) certificates for (or a timely book-entry confirmation (as defined in the Offer to Purchase) with respect to) such shares, (b) a Letter of Transmittal (as defined in the Offer to Purchase), or facsimile thereof, properly completed and duly executed, with any required signature guarantees (or, in the case of a book- entry transfer, an agent's message (as defined in the Offer to Purchase) in lieu of the Letter of Transmittal) and (c) any other documents required by the Letter of Transmittal. Accordingly, tendering shareholders may be paid at different times depending upon when certificates for shares or book-entry confirmations with respect to shares are actually received by the Depositary. If a shareholder desires to tender shares and cannot timely satisfy the requirements to tender prior to the expiration date, the shareholder may tender shares by complying with the procedure for guaranteed delivery described in the Offer to Purchase. Under no circumstances will interest on the purchase price of the shares be paid by Arrow, regardless of any extension of the Offer or any delay in making such payment. Subject to the applicable rules and regulations of the Securities and Exchange Commission, Arrow expressly reserves the right, in its sole discretion, at any time or from time to time, to extend the period of time during which the Offer is open by giving oral or written notice of such extension to the Depositary and by making a public announcement thereof. During any such extension, all shares previously tendered and not withdrawn will remain subject to the Offer, subject to the right of a tendering shareholder to withdraw such shareholder's tender of shares. Any extension, delay, termination, waiver or amendment will be followed as promptly as practicable by public announcement thereof to be made no later than 9:00 a.m., Eastern time, on the next business day after the previously scheduled expiration date (as defined in the Offer to Purchase). Tenders of shares made pursuant to the Offer are irrevocable, except that shares tendered pursuant to the Offer may be withdrawn at any time prior to the expiration date and, unless theretofore accepted for payment by Arrow pursuant to the Offer, may also be withdrawn at any time after July 27, 2008. For a withdrawal to be effective, a notice of withdrawal must be timely received by the Depositary at one of its addresses set forth on the back cover of the Offer to Purchase. Any such notice of withdrawal must specify the name of the person having tendered the shares to be withdrawn, the number of shares to be withdrawn and the names in which the certificate(s) evidencing the shares to be withdrawn are registered, if different from that of the person who tendered such shares. The signature(s) on the notice of withdrawal must be guaranteed by an eligible institution (as defined in the Offer to Purchase), unless such shares have been tendered for the account of any eligible institution. If shares have been tendered pursuant to the procedures for book-entry tender as set forth in Section 2 of the Offer to Purchase, any notice of withdrawal must specify the name and number of the account at the book-entry transfer facility (as defined in the Offer to Purchase) to be credited with the withdrawn shares. If certificates for shares to be withdrawn have been delivered or otherwise identified to the Depositary, the name of the registered holder and the serial numbers of the particular certificates evidencing the shares to be withdrawn must also be furnished to the Depositary as aforesaid prior to the physical release of such certificates. All questions as to the form and validity (including time of receipt) of any notice of withdrawal will be determined by Arrow, in its sole discretion, which determination shall be final and binding. If tendering shareholders tender more than the number of shares that Arrow seeks to purchase pursuant to the Offer to Purchase, Arrow will take into account the number of shares so tendered and take up and pay for as nearly as may be pro rata, disregarding fractions, according to the number of shares tendered by each tendering shareholder during the period during which the Offer remains open. If proration of tendered shares is required, because of the difficulty of determining the precise number of shares properly tendered and not withdrawn, Arrow does not expect to announce the final results of proration or pay for any shares until at least five New York Stock Exchange trading days after the expiration date. Preliminary results of proration will be announced by press release as promptly as practicable. The Offer contains certain conditions, and Arrow shall have no obligation to take up and pay for shares tendered in the Offer if, among other things (a) there is any action brought by any governmental authority to restrain or prohibit issuance of shares or restrain the rights of Arrow with respect to the shares, (b) there is any judgment, order or injunction issued by a governmental authority that prevents or makes illegal the consummation of the Offer, (c) the Company's Board of Directors or any committee thereof withdraws its approval of the Offer or the transactions contemplated thereby, (d) the Company materially breaches a representation or warranty in the Investment Agreement, (e) the Company fails to perform a material obligation of the Investment Agreement, (f) the Investment Agreement is terminated in accordance with its terms, (g) the Company does not timely file its Annual Report on Form 20-F with the U.S. Securities Exchange Commission, (h) Arrow and the Company agree to terminate the Offer, or (i) any newly issued shares have not been listed or approved for listing on such exchange as the shares are then listed. For a full descriptions of the conditions to the Offer see Section 13 of the Offer to Purchase. There is no financing condition to the Offer. If a shareholder's shares are accepted for payment pursuant to the Offer, the shareholder will generally recognize gain or loss measured by the difference between the cash received by the shareholder and the shareholder's adjusted tax basis in the tendered shares. Shareholders should review the description of U.S. federal income tax consequences contained in the Offer to Purchase and consult with their tax advisor when evaluating the Offer. None of Arrow, the Depositary, the Information Agent, or any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give such notification. Withdrawals of tenders of shares may not be rescinded, and any shares properly withdrawn will be deemed not to have been validly tendered for purposes of the Offer. However, withdrawn shares may be retendered by following one of the procedures described in Section 2 of the Offer to Purchase at any time prior to the expiration date. The information required to be disclosed by paragraph (d)(1) of Rule 14d-6 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended, is contained in the Offer to Purchase and is incorporated herein by reference. Pursuant to the Investment Agreement, the Company has agreed to furnish Arrow with the Company's shareholder list and security positions listings for the purpose of disseminating the Offer to shareholders. Arrow intends to mail the Offer to Purchase, the related Letter of Transmittal and, if required, other relevant materials to record holders on or before May 30, 2008 and to furnish them to broker-dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the shareholder list, if applicable, or who are listed as participants in a clearing agency's security position listing for subsequent transmittal to beneficial owners of shares. THE OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER. Questions and requests for assistance may be directed to the Information Agent at its telephone numbers set forth below. To obtain promptly additional copies of the Offer to Purchase, the related Letter of Transmittal and other tender offer materials please call the Information Agent at one of the telephone numbers set forth below. Such copies will be furnished at Arrow's expense. Arrow will not pay any fees or commissions to any broker or dealer or any other person (other than the Information Agent and the Depositary) for soliciting tenders of shares pursuant to the Offer. The Information Agent for the Offer is: MacKenzie Partners, Inc. Call Collect: (212) 929-5500 Toll-Free: (800) 322-2885 May 28, 2008 EX-99.(D)(1) 9 e603876_ex99-d1.txt Execution Copy INVESTMENT AGREEMENT between ARROW MASTERS LP, ARROW PARTNERS LP and ARROW OFFSHORE, LTD. and W.P. STEWART & CO., LTD. Dated as of May 20, 2008 TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS.............................................................................................1 SECTION 1.1 DEFINITIONS..................................................................................1 ARTICLE II THE OFFER; SHARE PURCHASE..............................................................................4 SECTION 2.1 THE OFFER....................................................................................4 SECTION 2.2 COMPANY ACTION...............................................................................5 SECTION 2.3 PRIMARY SHARE PURCHASES......................................................................6 ARTICLE III CONDITIONS............................................................................................6 SECTION 3.1 CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY TO ISSUE THE SHARES....................6 SECTION 3.2 CONDITIONS PRECEDENT TO THE OBLIGATION OF PURCHASERS TO PURCHASE THE SHARES..................7 ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY...............................................8 SECTION 4.1 ORGANIZATION, STANDING AND POWER; SUBSIDIARIES...............................................8 SECTION 4.2 CAPITAL STRUCTURE............................................................................9 SECTION 4.3 NEWLY ISSUED SHARES..........................................................................9 SECTION 4.4 NO CONFLICT; REQUIRED FILINGS AND CONSENTS...................................................9 SECTION 4.5 OFFER DOCUMENTS; SCHEDULE 14D-9.............................................................10 SECTION 4.6 SEC FILINGS; FINANCIAL STATEMENTS...........................................................11 SECTION 4.7 ABSENCE OF LITIGATION.......................................................................11 SECTION 4.8 BROKERS.....................................................................................12 ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASERS...........................................................12 SECTION 5.1 ORGANIZATION................................................................................12 SECTION 5.2 AUTHORITY RELATIVE TO THIS AGREEMENT........................................................12 SECTION 5.3 NO CONFLICT; REQUIRED FILINGS AND CONSENTS..................................................12 SECTION 5.4 FINANCING...................................................................................13 SECTION 5.5 OFFER DOCUMENTS.............................................................................13 SECTION 5.6 NON-DISTRIBUTION............................................................................13 SECTION 5.7 ACCREDITED INVESTOR STATUS..................................................................14 SECTION 5.8 RELIANCE ON EXEMPTIONS......................................................................14 SECTION 5.9 INFORMATION.................................................................................14 SECTION 5.10 TRANSFER OR RESALE..........................................................................14 SECTION 5.11 LEGENDS.....................................................................................14 SECTION 5.12 BROKERS.....................................................................................15 SECTION 5.13 ABSENCE OF LITIGATION.......................................................................15 ARTICLE VI COVENANTS.............................................................................................16 SECTION 6.1 CONDUCT OF BUSINESS BY THE COMPANY..........................................................16 SECTION 6.2 NO SOLICITATION OF TRANSACTIONS.............................................................17 SECTION 6.3 LISTING OF NEWLY ISSUED SHARES..............................................................17 SECTION 6.4 FURTHER ACTION; ALL REASONABLE EFFORTS......................................................17 SECTION 6.5 PUBLIC ANNOUNCEMENTS........................................................................18 SECTION 6.6 STANDSTILL AGREEMENT........................................................................18 ARTICLE VII TERMINATION, AMENDMENT AND WAIVER....................................................................19 SECTION 7.1 TERMINATION.................................................................................19 SECTION 7.2 EFFECT OF TERMINATION.......................................................................20 SECTION 7.3 FEES AND EXPENSES...........................................................................20 ARTICLE VIII GENERAL PROVISIONS..................................................................................21 SECTION 8.1 AMENDMENT...................................................................................21 SECTION 8.2 NOTICES.....................................................................................21
i TABLE OF CONTENTS
Page ---- SECTION 8.3 SEVERABILITY................................................................................22 SECTION 8.4 SPECIFIC PERFORMANCE........................................................................22 SECTION 8.5 ENTIRE AGREEMENT; ASSIGNMENT................................................................22 SECTION 8.6 WAIVER......................................................................................22 SECTION 8.7 PARTIES IN INTEREST.........................................................................22 SECTION 8.8 GOVERNING LAW...............................................................................23 SECTION 8.9 WAIVER OF JURY TRIAL........................................................................23 SECTION 8.10 HEADINGS....................................................................................23 SECTION 8.11 COUNTERPARTS................................................................................23
ANNEX A..CONDITIONS TO THE OFFER ANNEX B..REGISTRATION RIGHTS AGREEMENT ANNEX C..WAIVER OF SHARE VOTING RESTRICTIONS ii INVESTMENT AGREEMENT, dated as of May 20, 2008 (this "Agreement"), between ARROW OFFSHORE, LTD, a Cayman Islands exempted company ("Arrow Offshore"), ARROW PARTNERS LP, a Delaware limited partnership ("Arrow Partners"), and ARROW MASTERS LP, a Delaware limited partnership ("Arrow Masters" and collectively with Arrow Offshore and Arrow Partners, "Purchasers"), and W.P. STEWART & CO., LTD., a Bermuda exempted Company (the "Company"). WHEREAS, the parties hereto have determined that it is in best interests of the parties and their respective equity owners that Purchasers make a cash tender offer (the "Offer") for up to 19,902,000 common shares, par value $0.001 per share, of the Company ("Common Shares") for a purchase price per Common Share equal to the closing price of the Common Shares on the New York Stock Exchange on May 20, 2008, but not to be greater than $1.60 or less than $1.50, less any dividends paid to holders of record of Common Shares from and after the date hereof through the Closing Date (such amount, or any greater amount per share paid pursuant to the Offer, being the "Per Share Amount"), net to the seller in cash, upon the terms and subject to the conditions of this Agreement and the Offer; WHEREAS, the parties hereto have determined that it is in the best interests of the parties and their respective equity owners, as applicable, that, immediately following the Closing of the Offer, if Purchasers shall not have purchased at least 13,840,000 Common Shares pursuant to the Offer and as described in Section 2.3(b), Purchasers will have the option but not the obligation to purchase, for a purchase price per Common Share equal to the Per Share Amount, up to 2,430,000 newly issued Common Shares of the Company; WHEREAS, the parties hereto have determined that it is in the best interests of the parties and their respective equity owners, as applicable, that immediately following the closing of the Offer, Purchasers shall purchase from the Company 5,010,000 Common Shares at a purchase price per Common Share equal to the Per Share Amount; and NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby Purchasers and the Company hereby agree as follows: ARTICLE I DEFINITIONS Section 1.1 Definitions. For purposes of this Agreement: "Acquisition Proposal" means (i) any proposal or offer from any person relating to any direct or indirect acquisition of (A) all or substantially all of the assets of the Company and its subsidiaries, taken as a whole, or (B) over 20% of any class of equity securities of the Company; (ii) any tender offer or exchange offer as defined pursuant to the Exchange Act that, if consummated, would result in any person beneficially owning 20% or more of any class of equity securities of the Company; or (iii) any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Transactions. "affiliate" of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified person. "beneficial owner", with respect to any Common Shares, has the meaning ascribed to such term under Rule 13d-3(a) of the Exchange Act. "Board" means the Board of Directors of the Company. "business day" means any day on which the principal offices of the SEC in Washington, D.C. are open to accept filings, or, in the case of determining a date when any payment is due, any day on which banks are not required or authorized to close in The City of New York. "Code" means the Internal Revenue Code of 1986, as amended. "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, as trustee or executor, by contract or credit arrangement or otherwise. "knowledge of the Company" means the actual knowledge of the officers of the Company after reasonable investigation. "Law" means any foreign, international, Federal, state, provincial or domestic law, treaty, convention, statute, code, ordinance, rule, regulation or order. "Liens" means any mortgages, deeds of trust, liens (statutory or other), pledges, security interests, collateral security arrangements, conditional and installment agreements, claims, covenants, conditions, restrictions, reservations, options, rights of first offer or refusal, charges, easements, rights-of-way, encroachments or other encumbrances or title imperfections or defects of any kind or nature. "Material Adverse Effect" means, when used in connection with the Company or any of its subsidiaries, any event, circumstance, change or effect that is materially adverse to the financial condition or results of operations of the Company and its subsidiaries, taken as a whole; provided, however, that "Material Adverse Effect" shall not include any event, circumstance, change or effect arising out of or attributable to (i) any decrease in the market price of the Common Shares, (ii) events, circumstances, changes or effects that generally affect the industries in which the Company operates, (iii) general economic conditions or events, circumstances, changes or effects affecting the securities markets generally, or (iv) changes arising from the announcement of the execution of this Agreement or the consummation of the Transactions. "NDA" means the Confidentiality Letter Agreement dated April 16, 2008 between the Company and Arrow Capital Management, LLC. "Newly Issued Shares" means any Common Shares issued pursuant to the Primary Share Purchases; provided, however, that the number of Newly Issued Shares shall not exceed the number that represents 19.9% of the total outstanding Common Shares immediately prior to the Primary Share Purchases. 2 "Organizational Documents" means the memorandum of association and bye-laws (or the equivalent organizational documents), in each case as in effect on the date of this Agreement. "person" means an individual, corporation, partnership, limited partnership, limited liability company, syndicate, person (including, without limitation, a "person" as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government. "Primary Share Purchase" or "Primary Share Purchases" means any purchase by Purchasers and issuance and sale by the Company, of any Newly Issued Shares, in accordance with either Section 2.3(a) or 2.3(b) hereof. "Shareholders" means holders of Common Shares. "subsidiary" or "subsidiaries" of the Company, Purchasers or any other person means an affiliate controlled by such person, directly or indirectly, through one or more intermediaries. "Transactions" means, collectively, each of the Offer and the Primary Share Purchases and the other transactions contemplated by this Agreement. The following terms have the meaning set forth in the Sections set forth below:
Defined Term Location of Definition ------------ ---------------------- Action Section 4.7 Agreement Preamble Board Recommendation Section 2.2 Closing Section 2.3(c) Closing Date Section 2.3(c) Common Shares Recitals Company Preamble Disclosure Schedules ARTICLE IV Exchange Act Section 2.1(a) GAAP Section 4.6(b) Governmental Authority Section 4.4(c) NDA Section 6.6(a) New York Stock Exchange Additional Listing Application Section 6.3(a) Offer Recitals Offer Documents Section 2.1(b) Offer to Purchase Section 2.1(b) Per Share Amount Recitals Primary Share Purchases Section 2.3 Purchasers Preamble Schedule 14D-9 Section 2.2(a) Schedule TO Section 2.1(b) SEC Section 2.1(a) Securities Act Section 4.6(a) SEC Reports Section 4.6(a) subsequent offering period Section 2.1(a)
3 ARTICLE II THE OFFER; SHARE PURCHASE Section 2.1 The Offer. (a) Purchasers shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than May 28, 2008. Purchasers shall hold the Offer open for a minimum period equal to the longer of (i) 20 business days following the commencement thereof or (ii) until July 8, 2008. The obligation of Purchasers to accept for payment Common Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto. Purchasers expressly reserve the right to waive any such condition, to increase the price per share payable in the Offer, to extend the offer to provide for "subsequent offering periods," as such term is defined in, and in accordance with, Rule 14d-11 under the Exchange Act and to make any other changes in the terms and conditions of the Offer; provided, however, that, without the prior written consent of the Company, Purchasers shall not (i) decrease the price per share payable in the Offer, (ii) reduce the maximum number of Common Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex A hereto, (iv) change the form of consideration payable in the Offer or (v) amend, add to or waive any term or condition of the Offer in any manner that would be, in any significant respect, adverse to the Company or the Shareholders. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to the seller in cash, and shall be reduced by the per share distributions, if any, declared and payable by the Company to Shareholders from and after the date hereof until the expiration of the Offer, upon the terms and subject to the conditions of the Offer. Upon expiration of the Offer, Purchasers shall, subject to pro-ration, accept for payment Common Shares validly tendered and not withdrawn pursuant to the Offer and pay for all such Common Shares promptly following the acceptance of Common Shares for payment in accordance with applicable Law and any rule, regulation or interpretation of the SEC. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Purchasers expressly reserve the right to delay payment for Common Shares to the extent required for compliance in whole or in part with applicable Laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (b) As promptly as reasonably practicable on the date of commencement of the Offer, Purchasers shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal and any related summary advertisement (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Purchasers and the Company agree to 4 correct promptly any information provided by any of them for use in the Offer Documents that shall have become false or misleading, and Purchasers further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC, and the other Offer Documents, as so corrected, to be disseminated to Shareholders, in each case as and to the extent required by applicable federal securities laws. Section 2.2 Company Action. (a) Provided that the conditions contained in Sections 3.1(a) and (c) are satisfied as of the date of commencement of the Offer, as if such date was the Closing Date, except as required by the fiduciary duties of the Board under applicable Law as determined by the Board in good faith, after consultation with its counsel, the Company shall consent to the inclusion in the Offer Documents of a statement that the Board has authorized and approved this Agreement and the transactions contemplated hereby and determined that this Agreement and such transactions are in the best interests of the Shareholders, but, that the Board is remaining neutral and making no recommendation as to whether Shareholders should tender their Shares in the Offer (the "Board Recommendation"), together with such other supporting information regarding the Board Recommendation as shall be mutually agreeable by the Board and Purchasers. As promptly as reasonably practicable on or after the date of commencement of the Offer, (but in no event later than 5 business days thereafter) the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, the "Schedule 14D-9") containing, except as required by the fiduciary duties of the Board under applicable Law as determined by the Board in good faith, after consultation with its counsel, the Board Recommendation, and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Exchange Act, and any other applicable federal securities laws. The Company and Purchasers agree to correct promptly any information provided by any of them for use in the Schedule 14D-9 which shall have become false or misleading, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9, as so corrected, to be filed with the SEC and disseminated to Shareholders, in each case as and to the extent required by applicable federal securities laws. (b) The Company shall, or shall cause its agents to, promptly furnish Purchasers, upon request, with (i) mailing labels containing the names and addresses of all record Shareholders, (ii) security position listings of Common Shares held in stock depositories and (iii) a non-objecting beneficial owners (NOBO) list, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Common Shares. The Company shall, or shall cause its agents to, furnish Purchasers upon request with such additional information, including, without limitation, updated listings and computer files of Shareholders, mailing labels and security position listings, and such other assistance in disseminating the Offer Documents to holders of Common Shares as Purchasers may reasonably request. Subject to the requirements of applicable Law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer, Purchasers shall hold in confidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer, and, if this Agreement shall be terminated in accordance with Section 7.1, shall deliver to the Company all copies of such information then in its possession. 5 Section 2.3 Primary Share Purchases. (a) On the second business day immediately following the later of (i) the expiration date of the Offer or (ii) if Purchasers provide for subsequent offering periods, the expiration date of the final subsequent offering period, if Purchasers shall have purchased fewer than 13,840,000 Common Shares, pursuant to the Offer and Section 2.3(b), then Purchasers shall have the option, but not the obligation, to require the Company to issue and sell to Purchasers up to 2,430,000 additional Newly Issued Shares at the Per Share Amount. (b) On the second business day immediately following the later of (i) the expiration date of the Offer or (ii) if Purchasers provide for subsequent offering periods, the expiration date of the final subsequent offering period, Purchasers shall be required to purchase and the Company shall issue 5,010,000 Newly Issued Shares at the Per Share Amount in addition to any shares purchased pursuant to Section 2.3(a). (c) The purchase price for all Newly Issued Shares shall be the Per Share Amount. The closing of the purchase and sale of the Newly Issued Shares shall take place at the offices of Dorsey & Whitney LLP, 250 Park Avenue, New York, New York 10177-1500 (the "Closing"), and the date of such Closing shall be the Closing Date (the "Closing Date"). ARTICLE III CONDITIONS Section 3.1 Conditions Precedent to the Obligation of the Company to Issue the Shares. The obligation hereunder of the Company to issue the Newly Issued Shares to Purchasers in each Primary Share Purchase is subject to the satisfaction or waiver, at or before the Closing, of each of the conditions set forth below. These conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion. (a) Accuracy of Purchasers' Representations and Warranties. The representations and warranties of Purchasers contained in Article V hereof shall be true and correct in all material respects as of the date when made and as of the Closing as though made at that time, except for representations and warranties that are expressly made as of a particular date. (b) Performance by Purchasers. Purchasers shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by Purchasers at or prior to the Closing. (c) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement. Section 3.2 Conditions Precedent to the Obligation of Purchasers to Purchase the Shares. The obligation hereunder of Purchasers to acquire and pay 6 for the Newly Issued Shares in any Primary Share Purchase is subject to the satisfaction or waiver, at or before the Closing, of each of the conditions set forth below. These conditions are for Purchasers' sole benefit and may be waived by Purchasers at any time in their sole discretion. (a) Accuracy of the Company's Representations and Warranties. Each of the representations and warranties of the Company contained in Article IV hereof shall be true and correct in all material respects as of the date when made and as of the Closing as though made at that time (except for representations and warranties that speak as of a particular date). (b) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing. (c) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement. (d) Registration Rights Agreement. The Company shall have provided to Purchasers a Registration Rights Agreement in the form attached hereto as Annex B. (e) Voting Restriction Waivers. The Board of Directors shall have adopted the waivers of the voting restrictions in the Company's Bye-laws set forth in Annex C. (f) Listing Application for Newly Issued Shares. The Newly Issued Shares shall have been listed or approved for listing on the exchange on which the Common Shares are then listed. ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY As an inducement to Purchasers to enter into this Agreement, and except as disclosed in a separate disclosure schedule which has been delivered by the Company to Purchasers prior to the execution of this Agreement (the "Disclosure Schedules"), the Company hereby represents, warrants and covenants to Purchasers that: Section 4.1 Organization, Standing and Power; Subsidiaries. (a) Each of the Company and each of its subsidiaries is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, has the requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except where the failures to be so organized, existing and in good standing or to have such power and authority, in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company, and is duly qualified and in good standing to do business as a foreign corporation or other legal entity in each other jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such 7 qualification necessary other than in such jurisdictions where the failures so to qualify or to be in good standing would not, individually or in the aggregate reasonably be expected to have a Material Adverse Effect on the Company. The Organizational Documents of the Company and each of its subsidiaries are in full force and effect. Neither the Company nor any of its subsidiaries is in violation of its Organizational Documents other than violations which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. (b) Section 4.1(b) of the Disclosure Schedules includes all the subsidiaries of the Company which as of the date of this Agreement are significant subsidiaries (as defined in Rule 1-02 of Regulation S-X of the SEC). All the outstanding shares of capital stock of, or other equity interests in, each such significant subsidiary have been validly issued and are fully paid and non-assessable and are, except as set forth in Section 4.1(b) of the Disclosure Schedules, owned directly or indirectly by the Company, free and clear of all Liens and free of any other restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other ownership interests), except for restrictions imposed by applicable securities laws including but not limited to the requirement of the consent of the Bermuda Monetary Authority in respect of the transfer of shares. Except as set forth in the Company SEC Reports filed prior to the date hereof, neither the Company nor any of its subsidiaries directly or indirectly owns any equity or similar interest in, or any interest convertible into or exchangeable or exercisable for, any corporation, partnership, joint venture or other business association or entity (other than subsidiaries), that is or would reasonably be expected to be material to the Company and its subsidiaries taken as a whole. Section 4.2 Capital Structure. (a) The authorized share capital of the Company consists of 125,000,000 Common Shares. As of the close of business on May 20, 2008, 50,351,566 Common Shares were issued and outstanding. No Common Shares are held by any subsidiary of the Company. Other than restricted Common Shares ("Restricted Shares") granted to employees of the Company, since April 30, 2008 to the date of this Agreement, there have been no issuances of shares of the Company or any other securities of the Company. All issued and outstanding shares of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of the Company's share capital is entitled to preemptive rights. As of May 20, 2008, options to purchase 181,265 Common Shares ("Stock Options") and 3,959,724 Restricted Shares were outstanding. No Stock Option (i) has a per share exercise price lower than the fair market value of a Common Share on the date of grant of such Stock Option, (ii) has had its grant date backdated or (iii) has had its grant date delayed in order to take advantage of the release or other public announcement of material non-public information regarding the Company or its subsidiaries. Section 4.2(a) of the Disclosure Schedules sets forth a correct and complete list, as of the date of this Agreement, of outstanding Restricted Shares and Stock Options, including the holder thereof, the date of grant, the term (in the case of Stock Options), the number of Common Shares subject to such Stock Option, the Company stock plan, if applicable, under which such award was granted and, where applicable, the exercise price. (b) Except as otherwise set forth in this Section 4.2(b) or in Section 4.2(b) of the Disclosure Schedules, as of the date of this Agreement, there are no securities, options, warrants, calls, rights, commitments, 8 agreements, arrangements or undertakings of any kind to which the Company or any of its subsidiaries is a party or by which any of them is bound obligating the Company or any of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares or other voting securities of the Company or any of its subsidiaries or obligating the Company or any of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. As of the date of this Agreement, there are no outstanding obligations of the Company or any of its subsidiaries to repurchase, redeem or otherwise acquire any shares of the Company or any of its subsidiaries. Section 4.3 Newly Issued Shares. The Newly Issued Shares, when, if and as, issued pursuant to each Primary Share Purchase in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and, assuming the representations and warranties of Purchasers are true and accurate, will be issued in compliance with all applicable Laws. Section 4.4 No Conflict; Required Filings and Consents. (a) The Company has all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company. No other corporate proceedings on the part of the Company are necessary to approve this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). (b) The execution and delivery of this Agreement by the Company does not or will not, as the case may be, and the consummation by the Company of the transactions contemplated hereby does not and will not, conflict with, or result in a violation of, or constitute a default (with or without notice or lapse of time, or both) under, or give rise to a right of, or result by its terms in the, termination, amendment, cancellation or acceleration of any obligation or the loss of a material benefit under, or the creation of a lien, pledge, security interest, charge or other encumbrance on, or the loss of, any assets pursuant to: (A) any provision of the Organizational Documents of the Company or any material subsidiary of the Company or (B) except as, in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company or, subject to obtaining or making the consents, approvals, orders, authorizations, registrations, declarations and filings referred to in paragraph (c) below, any loan or credit agreement, note, mortgage, bond, indenture, lease, benefit plan or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any subsidiary of the Company or their respective properties or assets. (c) Except for the New York Stock Exchange Additional Listing Application with respect to the Newly Issued Shares, the execution and delivery 9 of this Agreement and any agreements contemplated hereby by the Company do not, and the performance of this Agreement and any agreements contemplated hereby by the Company will not, require any consent, approval, authorization or permit of, or filing with or notification to, any federal, state, county or local government, governmental, regulatory or administrative authority, agency, instrumentality or commission or any court, tribunal, or judicial or arbitral body (a "Governmental Authority") or any other person. Section 4.5 Offer Documents; Schedule 14D-9. Neither the Schedule 14D-9 nor any information supplied by the Company for inclusion in the Offer Documents shall, at the times the Schedule 14D-9, the Offer Documents or any amendments or supplements thereto are filed with the SEC or are first published, sent or given to Shareholders, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to any information supplied by Purchasers or any of Purchasers' representatives for inclusion in the foregoing documents. The Schedule 14D-9 shall comply in all material respects as to form with the requirements of the Exchange Act and the rules and regulations thereunder. Section 4.6 SEC Filings; Financial Statements. (a) The Company has filed on a timely basis all forms, reports and documents required to be filed by it with the SEC through the date of this Agreement (the "SEC Reports"). The SEC Reports (i) were prepared, in all material respects, in accordance with the requirements of the Securities Act of 1933, as amended (the "Securities Act") or the Exchange Act, as the case may be, and the rules and regulations promulgated thereunder, and (ii) did not at the time they were filed contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. No subsidiary of the Company, except W.P. Stewart & Co., Inc., W.P. Stewart Asset Management Ltd. and W.P. Stewart Securities Limited, is required to file any form, report, registration statement or prospectus or other document with the SEC. (b) Each of the consolidated financial statements (including, in each case, any notes thereto) contained in the SEC Reports was prepared in accordance with United States generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and each fairly presented in all material respects the consolidated financial position, results of operations and cash flows of the Company and its consolidated subsidiaries as at the respective dates thereof and for the respective periods indicated therein, except as otherwise noted therein (subject, in the case of unaudited statements, to normal and recurring year-end adjustments). Section 4.7 Absence of Litigation. Except as disclosed in the SEC Reports and Schedule 4.7 of the Disclosure Schedules, as of the date of this Agreement, there is no litigation, suit, claim, action or proceeding (an "Action") pending or, to the knowledge of the Company, threatened in writing against the Company or any of its subsidiaries, or any property or asset of the Company or any of its subsidiaries, before any Governmental Authority that (i) 10 would have a Material Adverse Effect, (ii) seeks to delay or prevent the consummation of any Transaction or (iii) if successful would prevent or delay consummation of the Transactions, or otherwise prevent the Company from performing its obligations under this Agreement or would render the Transactions, this Agreement or any agreements contemplated hereby, null and void. Except as disclosed in the SEC reports, neither the Company nor any of its subsidiaries nor any property or asset of the Company or any of its subsidiaries is subject to any continuing order of, consent decree, settlement agreement or similar written agreement with, or, to the knowledge of the Company, continuing investigation by, any Governmental Authority, or any order, writ, judgment, injunction, decree, determination or award of any Governmental Authority that would have a Material Adverse Effect or prevent or delay consummation of the Transactions, or otherwise prevent the Company from performing its obligations under this Agreement or any agreements contemplated hereby. Section 4.8 Brokers. No broker, finder, investment banker or other person is entitled to any brokerage, finder's or other fee or commission in connection with the Transactions based upon arrangements made by or on behalf of the Company other than the fees and expenses of (i) Merrill Lynch, Pierce, Fenner & Smith Incorporated and (ii) Duff & Phelps, LLC, the cost of which shall be borne solely by the Company. ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASERS As an inducement to the Company to enter into this Agreement, Purchasers hereby represent and warrant to the Company that: Section 5.1 Organization. Purchasers are entities duly organized, validly existing and in good standing under the laws of the jurisdiction of their organization and have the requisite power and authority and all necessary governmental approvals to own, lease and operate their properties and to carry on their business as it is now being conducted, except where the failure to be so organized, existing or in good standing or to have such power, authority and governmental approvals would not prevent or delay consummation of the Transactions, or otherwise prevent Purchasers from performing their obligations under this Agreement and any agreements contemplated hereby. Arrow Capital Management, LLC, a Delaware limited liability company ("Arrow Management"), is the sole manager of Arrow Masters and Arrow Partners and the co-advisor of Arrow Offshore. Arrow Offshore Advisors, LLC, a Delaware limited liability company ("Offshore Advisors") is a co-advisor of Arrow Offshore. Arrow Advisors LLC, a Delaware limited liability company ("Arrow Advisors"), is the sole general partner of Arrow Masters and Arrow Partners. Section 5.2 Authority Relative to this Agreement. Each Purchaser has all necessary power and authority to execute and deliver this Agreement and any agreements contemplated hereby, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution and delivery of this Agreement and any agreements contemplated hereby by each Purchaser and the consummation by each Purchaser of the Transactions have been duly and validly authorized by all necessary action, and no other proceedings on the part of each Purchaser are necessary to authorize this Agreement and any agreements contemplated hereby or to consummate the Transactions. Each of this Agreement 11 and any agreements contemplated hereby has been duly and validly executed and delivered by each Purchaser, and, assuming due authorization, execution and delivery by the Company, constitutes legal, valid and binding obligations of each Purchaser enforceable against each Purchaser in accordance with its terms. Section 5.3 No Conflict; Required Filings and Consents. (a) The execution and delivery of this Agreement and any agreements contemplated hereby by each Purchaser does not, and the performance of this Agreement and any agreements contemplated hereby by such Purchaser will not, (i) conflict with or violate the Organizational Documents of such Purchaser, (ii) assuming that all consents, approvals, authorizations and other actions described in subsection (b) have been obtained and all filings and obligations described in subsection (b) have been made, conflict with or violate any Law applicable to such Purchaser or by which any property or asset of it is bound or affected, or (iii) result in any breach of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or other encumbrance on any property or asset of such Purchaser pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which such Purchaser is a party or by which such Purchaser or any property or asset of such Purchaser is bound or affected, except, with respect to clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults or other occurrences which would not prevent or materially delay consummation of the Transactions, or otherwise prevent such Purchaser from performing its obligations under this Agreement or any agreements contemplated hereby. (b) The execution and delivery of this Agreement and any agreements contemplated hereby by each Purchaser does not, and the performance of this Agreement and any agreements contemplated hereby by such Purchaser will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Authority or any other person, except for requirements of the Exchange Act applicable to the Offer. (c) No Purchaser is an "investment company" or an entity "controlled by an investment company" or is required to be registered as an "investment company" as those terms are defined in the Investment Company Act of 1940, as amended. Section 5.4 Financing. Each Purchaser has, and will have at the time of consummation of the Offer and the Closing, sufficient funds to acquire all the shares in the Offer and the Newly Issued Shares in the Primary Share Purchases without any financing contingency. Section 5.5 Offer Documents. The Offer Documents shall not, at the time the Offer Documents are filed with the SEC, are first published or are sent or given to Shareholders, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, neither Purchaser makes any representation or warranty with respect to any information supplied by the Company or any of its representatives for inclusion in the Offer Documents. The Offer Documents will comply in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder. 12 Section 5.6 Non-Distribution. Each Purchaser is purchasing the Newly Issued Shares for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof. Section 5.7 Accredited Investor Status. Each Purchaser is an "accredited investor" as that term is defined in Rule 501(a)(3) of Regulation D promulgated under the Securities Act. Section 5.8 Reliance on Exemptions. Each Purchaser understands that the Newly Issued Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying upon the truth and accuracy of, and such Purchaser's compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of such Purchaser to acquire the Newly Issued Shares. Section 5.9 Information. Each Purchaser and its advisors have been furnished with all materials relating to the business, finances and operations of the Company and materials relating to the offer and sale of the Newly Issued Shares which have been requested by such Purchaser. Each Purchaser and its advisors have been afforded the opportunity to ask questions of the Company and have received complete and satisfactory answers to any such inquiries. Each Purchaser understands that its investment in the Newly Issued Shares involves a high degree of risk. Each Purchaser has sought such accounting, legal and tax advice as it has considered necessary to an informed investment decision with respect to its acquisition of the Newly Issued Shares. Section 5.10 Transfer or Resale. Each Purchaser understands that (i) the Newly Issued Shares have not been and are not being registered under the Securities Act or any state securities laws, and may not be transferred unless (a) subsequently registered thereunder, or (b) each Purchaser shall have delivered to the Company an opinion of counsel, reasonably satisfactory in form, scope and substance to the Company, to the effect that the securities to be sold or transferred may be sold or transferred pursuant to an exemption from such registration; (ii) any sale of such securities made in reliance on Rule 144 promulgated under the Securities Act may be made only in accordance with the terms of said rule and further, if said rule is not applicable, any resale of such securities under circumstances in which the seller (or the person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the SEC thereunder; and (iii) except as contemplated by the Registration Rights Agreement, neither the Company nor any other person is under any obligation to register such securities under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder. Section 5.11 Legends. Each Purchaser understands that unless, and until such time as the Newly Issued Shares have been registered under the 13 Securities Act, the certificates representing such securities shall bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of such certificates): THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED AND APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS. ANY SUCH SALE, ASSIGNMENT OR TRANSFER MUST ALSO COMPLY WITH OR BE EXEMPT FROM APPLICABLE STATE SECURITIES LAWS. The legend set forth above as it appears on the certificate(s) representing the Newly Issued Shares shall be removed and the Company shall issue a certificate without such legend to the holder of such shares upon which it is stamped, if, unless otherwise required by federal or state securities laws, (a) the sale of such shares is registered under the Securities Act, or (b) in connection with a sale transaction, such holder provides the Company with an opinion of counsel, in form, substance and scope reasonably acceptable to the Company, to the effect that a public sale or transfer of such shares may be made without registration under the Securities Act, or (c) such holder provides the Company with an opinion of counsel experienced in such matters that the shares can be sold pursuant to Rule 144 under the Securities Act (or a successor rule thereto) without any restriction as to the number of securities acquired as of a particular date that can then be immediately sold. Section 5.12 Brokers. No broker, finder, investment banker or other person is entitled to any brokerage, finder's or other fee or commission in connection with the Transactions based upon arrangements made by or on behalf of any Purchaser. Section 5.13 Absence of Litigation. There is no Action pending or, to the knowledge of each Purchaser, threatened against such Purchaser or any of its subsidiaries, or any property or asset of such Purchaser or any of its subsidiaries, before any Governmental Authority that as of the date hereof, seeks to delay or prevent the consummation of any Transaction. Neither such Purchaser nor any of its subsidiaries nor any property or asset of such Purchaser or any of its subsidiaries is subject to any continuing order of, consent decree, settlement agreement or similar written agreement with, or, to the knowledge of such Purchaser, continuing investigation by, any Governmental Authority, or any order, writ, judgment, injunction, decree, determination or award of any Governmental Authority that would prevent or delay consummation of the Transactions, or otherwise prevent such Purchaser from performing its obligations under this Agreement or any agreements contemplated hereby. 14 ARTICLE VI COVENANTS Section 6.1 Conduct of Business by the Company. The Company agrees that, from the date of this Agreement until the Closing Date, neither the Company nor any of its subsidiaries shall, except as specifically contemplated in this Agreement, directly or indirectly: (a) amend or otherwise change its Organizational Documents; (b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares of any class of share capital or other ownership interest of the Company or any of its subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any such shares or any other ownership interest (including, without limitation, any phantom interest), of the Company or any of its subsidiaries or (ii) any material assets of the Company or any of its subsidiaries; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, securities, property or otherwise, with respect to any of its Common Shares; (d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock; (e) (i) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof, real property or any material amount of assets; (ii) except for borrowings under existing credit facilities, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances, or grant any security interest in any of its assets except in the ordinary course of business; (iii) other than in the ordinary course of business, enter into any contract or agreement other than as contemplated herein; or (iv) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this Section 6.1(e); (f) take any action, other than actions required by GAAP or in the ordinary course of business, to change its accounting policies or procedures;or (g) announce an intention, enter into any agreement or otherwise make a commitment, to do any of the foregoing. Section 6.2 No Solicitation of Transactions. (a) Neither the Company nor any of its subsidiaries shall, directly or indirectly, through any officer, director, agent or otherwise, solicit, or initiate the submission of, any Acquisition Proposal. (b) Notwithstanding anything in this Section 6.2 to the contrary, the Company may negotiate and otherwise engage in discussions with any person who delivers an Acquisition Proposal that (i) a majority of the Board believes, 15 if consummated, would result in a transaction that is superior to the Offer and (ii) a nationally recognized financial advisor engaged by the Board advises the Board would, if consummated, be superior to the Offer from a financial point of view, if the Company has complied with the terms of Section 6.2(a). (c) The Board shall be permitted to withdraw its approval of the Transactions and the Board Recommendation, but only if the Company has complied with Section 6.2(a) and 6.2(b). Section 6.3 Listing of Newly Issued Shares. (a) As soon as practicable following commencement of the Offer, but in no event more than ten calendar days thereafter, the Company shall file with the New York Stock Exchange an application to list the maximum number of Newly Issued Shares issuable pursuant to Section 2.3 hereof, in accordance with Section 703 of the New York Stock Exchange's listing standards (or other self-regulatory operating system on which Common Shares are then traded) ("New York Stock Exchange Additional Listing Application"). If it is impracticable to list the Newly Issued Shares on the New York Stock Exchange, the Company will use its best efforts to obtain a listing of the Newly Issued Shares subject to notice of issuance on the American Stock Exchange or NASDAQ. (b) The Company shall use its bests efforts to cause the Common Shares to continue to be listed on the New York Stock Exchange for a period of one year following the Closing Date or, if such listing is no longer permitted, the Company will use its best efforts to obtain a listing of the Common Shares on the American Stock Exchange or NASDAQ. Section 6.4 Further Action; All Reasonable Efforts. (a) Each of the parties shall use its reasonable efforts to timely satisfy each of the conditions precedent to the obligations hereunder of the other party hereto, as set forth in Article III hereof. (b) Without limiting the foregoing, upon the terms and subject to the conditions hereof, each of the parties hereto shall use all reasonable efforts to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws and regulations to consummate and make effective the Transactions, including, without limitation, using all reasonable efforts to obtain all permits, consents, approvals, authorizations, qualifications and orders of Governmental Authorities and parties to contracts with the Company and any of its subsidiaries, or Purchasers or any of their subsidiaries, as applicable, as are necessary for the consummation of the Transactions and to fulfill the conditions to the Offer. (c) Each of the parties hereto agrees to cooperate and use all reasonable efforts to vigorously contest and resist any Action, including administrative or judicial Action, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that is in effect and that restricts, prevents or prohibits consummation of the Transactions, including, without limitation, by vigorously pursuing all available avenues of administrative and judicial appeal. 16 Section 6.5 Public Announcements. Purchasers and the Company agree that no public release or announcement concerning the Transactions, the Offer or the Newly Issued Share Issuance shall be issued by either party without the prior consent of the other party (which consent shall not be unreasonably withheld), except as such release or announcement may be required by Law or the rules or regulations of any securities exchange, in which case the party required to make the release or announcement shall use all reasonable efforts to allow the other party reasonable time to comment on such release or announcement in advance of such issuance. Section 6.6 Standstill Agreement. (a) Paragraph (b) hereof shall replace, amend and restate in its entirety the 10th paragraph of the Confidentiality Letter Agreement dated April 16, 2008 between the Company and Arrow Capital Management LLC (the "NDA"). (b) Purchasers agree that except for the transactions contemplated by this Agreement until the earlier of (i) the expiration of one year from the Closing Date, or (ii) the date on which the Company publicly announces a significant corporate transaction requiring approval of the Shareholders and involving a material acquisition, disposition, amalgamation, merger or consolidation or any other similar extraordinary corporate transaction including, without limitation, the issuance of equity or debt securities by the Company that requires the approval of Shareholders, neither they nor any of their affiliates, including Arrow Capital, will (a) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any securities or property of the Company or any of its subsidiaries, (b) except at the specific written request of the Company, propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (c) make, or in any way participate in, directly or indirectly, any `solicitation' of `proxies' (as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (d) form, join or in any way participate in a `group' (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to any voting securities of the Company or any of its subsidiaries, (e) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (f) disclose any intention, plan or arrangement inconsistent with the foregoing, (g) advise, assist or encourage any other persons in connection with any of the foregoing, or (h) request any waiver of the provisions of this Section 6.6(b). Purchasers and Arrow Capital also agree during such period not to take any action which might require the Company to make a public announcement regarding the possibility of a business combination or merger; provided that notwithstanding the foregoing in addition to the Transactions, Purchasers and Arrow Capital may purchase additional outstanding Common Shares in open market purchases in compliance with all applicable laws and regulations and, if applicable, the Company's insider trading policies commencing more than 30 days after the Closing Date, provided that Purchasers and Arrow Capital together with their affiliates shall not at any time collectively own more than 45% of the outstanding Common Shares. 17 ARTICLE VII TERMINATION, AMENDMENT AND WAIVER Section 7.1 Termination. This Agreement may be terminated and the Transactions may be abandoned at any time prior to the Closing: (a) by mutual written consent of Purchasers and the Company duly authorized by the boards of directors or equivalent management boards of Purchasers and the Company; (b) by either Purchasers or the Company if any Governmental Authority shall have enacted, issued, promulgated, enforced or entered any non-appealable permanent injunction, order, decree or ruling which is then in effect and has the effect of making consummation of the Offer or the Primary Share Purchases illegal or otherwise preventing or prohibiting consummation of the Offer or the Primary Share Purchases; (c) by Purchasers if, prior to the Closing, (i) the Board or any committee thereof shall have withdrawn or modified in a manner adverse to Purchasers its approval of this Agreement, the Primary Share Purchases or the Board Recommendation other than in accordance with Section 6.2(c) hereof, or (ii) the Board shall have approved an Acquisition Proposal; provided, however, that if Purchasers shall not have theretofore so terminated this Agreement, Purchasers shall no longer have the right to terminate this Agreement pursuant to this clause (ii) with respect to any such Acquisition Proposal from and after the time the Company has notified Purchasers in writing that the Board has withdrawn its recommendation and approval of such Acquisition Proposal and has reinstated its approval of this Agreement, the Newly-Issued Share Purchase and the Board Recommendation; (d) by the Company, upon approval of the Board, if (i) Purchasers shall have (A) failed to commence the Offer by the close of business on May 28, 2008, (B) terminated the Offer without having accepted any shares for payment thereunder or (C) failed to pay for shares pursuant to the Offer by August 29, 2008, unless such action or inaction under (A), (B) or (C) shall have been caused by or resulted from the existence of the conditions specified in paragraph (c), (d), (e) or (g) of Annex A, or (ii) prior to the purchase of shares pursuant to the Offer, the Board determines in good faith, upon consultation with outside counsel, that it is required to do so by its fiduciary duties under applicable Law; or (e) by either Purchasers or the Company following the date which is 90 days after the entering by a Governmental Authority of competent jurisdiction of a temporary restraining order or preliminary injunction, which has not been vacated or dismissed, that prohibits the consummation, in whole or in part, of the Offer or the Primary Share Purchases. Section 7.2 Effect of Termination. In the event of the termination of this Agreement pursuant to Section 7.1, this Agreement shall forthwith become void, and there shall be no liability on the part of any party hereto, except (i) as set forth in Section 7.3 and (ii) nothing herein shall relieve any party from liability for any willful breach hereof. 18 Section 7.3 Fees and Expenses. (a) Except as otherwise provided in this Section 7.3, all costs and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such expenses, whether or not any Transaction is consummated. (b) As liquidated damages to compensate Purchasers for lost opportunity time, expenses and avoiding the difficulty of trying to quantify damages, the Company shall pay Purchasers an aggregate fee of $500,000 (to be divided by each Purchaser as Purchasers shall notify the Company in writing) on the earliest to occur of (i) consummation of a transaction resulting from an Acquisition Proposal, (ii) if this Agreement is terminated by Purchasers pursuant to Section 7.1(c)(ii) at any time following the date that is 90 days after the date on which the Company has approved or recommended an Acquisition Proposal in accordance with Section 6.2(b), or (iii) pursuant to Section 7.1(d)(ii). (c) In the event that Purchasers elect to extend the Offer solely because the Company has failed to timely comply with paragraph (g) of Annex A, the Company shall pay all printing and mailing costs associated with such extension. (d) If the Company fails to pay any amount due Purchasers under this Section 7.3, the Company shall also pay any costs and expenses incurred by Purchasers in any legal action to enforce this Agreement that results in any final, non-appealable judgment against the Company. ARTICLE VIII GENERAL PROVISIONS Section 8.1 Amendment. This Agreement may not be amended except by an instrument in writing signed by the parties hereto. Section 8.2 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by telecopy or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 8.2): if to Purchasers: Arrow Capital Management, LLC 499 Park Avenue, 10th Floor New York, NY 10022 Telephone No: (212) 243-7338 Fax No: (212) 243-2195 Attention: Quinn Martin, Jr. 19 with a copy to: Post Heymann & Koffler LLP Two Jericho Plaza, Wing A Jericho, NY 11753 Telephone No: (516) 681-3636 Fax No: (516) 433-2777 Attention: David J. Heymann if to the Company: W.P. Stewart & Co., Ltd. Trinity Hall 43 Cedar Avenue Hamilton HM 12 Bermuda Telephone No: (441) 295-8585 Fax No: (441) 296-6823 Attention: Seth Pearlstein with a copy to: Dorsey & Whitney LLP 250 Park Avenue New York, NY 10177-1500 Telephone No: (212) 415-9200 Fax No: (212) 953-7201 Attention: Barry Wade Section 8.3 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transactions is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the Transactions be consummated as originally contemplated to the fullest extent possible. Section 8.4 Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement is not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity. Section 8.5 Entire Agreement; Assignment. This Agreement (including the exhibits, annexes and schedules hereto and the NDA) constitutes the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and 20 oral, among the parties, or any of them, with respect to the subject matter hereof and thereof. This Agreement shall not be assigned by operation of law or otherwise, except that Purchasers may assign all or any of their rights and obligations hereunder, including the obligation to make the Offer, to any affiliate of Purchasers, provided that no such assignment shall relieve the assigning party of its obligations hereunder. Section 8.6 Waiver. No purported extension or waiver by any party shall be valid unless set forth in an instrument in writing signed by the party or parties to be bound thereby. Section 8.7 Parties in Interest. This Agreement shall be binding upon and inure to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Section 8.8 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts executed in and to be performed in that State. All actions and proceedings arising out of or relating to this Agreement shall be heard and determined exclusively in any New York state or federal court. The parties hereto hereby (a) submit to the exclusive jurisdiction of the courts of the State of New York for the purpose of any Action arising out of or relating to this Agreement brought by any party hereto, and (b) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named court, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the Transactions may not be enforced in or by the above-named court. Section 8.9 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS. EACH OF THE PARTIES HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.9. Section 8.10 Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. Section 8.11 Counterparts. This Agreement may be executed and delivered (including by facsimile transmission) in one or more counterparts, and 21 by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. [Remainder of page intentionally left blank.] 22 IN WITNESS WHEREOF, Purchasers and the Company have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized. Arrow Masters LP Arrow Partners LP By: Arrow Advisors LLC By: Arrow Advisors LLC General Partner General Partner By: /s/ Alexandre von Furstenberg By: /s/ Alexandre von Furstenberg ----------------------------- ----------------------------- Alexandre von Furstenberg Alexandre von Furstenberg Co-Managing Member Co-Managing Member By: /s/ Mal Serure By: /s/ Mal Serure ----------------------------- ----------------------------- Mal Serure Mal Serure Co-Managing Member Co-Managing Member Arrow Offshore, Ltd. W.P. Stewart & Co., Ltd. By: /s/ Mal Serure By: /s/ William P. Stewart ----------------------------- ----------------------------- Mal Serure William P. Stewart Director Chief Executive Officer 23 ANNEX A CONDITIONS TO THE OFFER Notwithstanding any other provision of the Offer, Purchasers shall not be required to accept for payment any shares tendered pursuant to the Offer at the expiration of the Offer, if any of the following conditions shall exist: (a) there shall have been instituted and remain pending any Action brought by any Governmental Authority of competent jurisdiction over the Company (i) challenging or seeking to make illegal or otherwise directly or indirectly restrain or prohibit the Offer or the Newly Issued Share Purchases, (ii) seeking to impose material limitations on the ability of Purchasers to exercise effectively full rights of ownership of any shares, including, without limitation, the right to vote any shares acquired or owned by Purchasers on all matters properly presented to the Shareholders, or (iii) seeking to require divestiture by Purchasers of any shares; (b) there shall be in effect any judgment, order or injunction entered or issued by any Governmental Authority of competent jurisdiction having the effect of making the consummation of the Offer or the Primary Share Purchases illegal or otherwise preventing or prohibiting consummation of the Offer or the Primary Share Purchases; (c) (i) the Board, or any committee thereof, shall have withdrawn or modified, in a manner adverse to Purchasers and not reinstated, its approval of this Agreement, the Primary Share Purchases or the Board Recommendation, shall have recommended that Shareholders not tender their shares in the Offer, shall have approved or recommended any Acquisition Proposal or any other material acquisition of shares other than the Offer or the Primary Share Purchases or (ii) the Board, or any committee thereof, shall have resolved to do any of the foregoing; (d) any representation or warranty of the Company in the Agreement shall not be true and correct as of such time on or after the date of this Agreement, except as would not have a Material Adverse Effect or prevent or materially delay consummation of the Transactions, or otherwise prevent the Company from performing its obligations under this Agreement; (e) the Company shall have failed to perform any material obligation or to comply with any material agreement or covenant of the Company to be performed or complied with by it at or prior to the expiration of the Offer under the Agreement or any agreement contemplated hereby; (f) the Agreement shall have been terminated in accordance with its terms; (g) the Company shall not have filed with the SEC its Annual Report on Form 20-F for the year ended December 31, 2007; (h) Purchasers and the Company shall have agreed that Purchasers shall terminate the Offer; or A-1 (i) any Newly Issued Shares shall not have been listed or approved for listing on such exchange as the Common Shares are then listed. A-2 ANNEX B REGISTRATION RIGHTS AGREEMENT B-1 ANNEX C WAIVER OF SHARE VOTING RESTRICTIONS The Common Shares held by Purchasers shall be subject to all voting restrictions set forth in the Bye-laws of the Company, provided that the Board of Directors shall have approved the following waivers: (a) For purposes of that portion of Bye-law 62 that precedes the definition of "Controlled Shares", clause (ii) of such definition shall be inapplicable to Purchasers. (b) For purposes of Bye-law 63, clause (i) of the definition of "Controlled Shares" set forth in Bye-law 62 shall be inapplicable to Purchasers. (c) "24%" shall be substituted for "20%" in Bye-law 63 in the case of Purchasers. The foregoing waivers shall not be assignable without the prior written consent of the Board. C-1 EX-99.(D)(2) 10 e603876_ex99-d2.txt Execution Copy REGISTRATION RIGHTS AGREEMENT This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as of May 20, 2008, by and among W.P. Stewart & Co., Ltd., a Bermuda exempted company ("WPS"), and the Arrow Offshore, Ltd, a Cayman Islands exempted company ("Arrow Offshore"), Arrow Partners LP, a Delaware limited partnership ("Arrow Partners"), and Arrow Masters LP, a Delaware limited partnership ("Arrow Masters" and collectively with Arrow Offshore and Arrow Partners, "Investors"). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Investment Agreement (as defined in the recitals below). WHEREAS, the Investors (individually, a "Shareholder" and collectively, "Shareholders") have agreed to purchase common shares of WPS ("WPS Shares") pursuant to that certain Investment Agreement (the "Investment Agreement") dated as of May 20, 2008, by and among WPS and the Investors; WHEREAS, the Primary WPS Shares (as defined herein) will be issued to the Shareholders without registration under the Securities Act of 1933, as amended (the "Securities Act"), and WPS and the Shareholders desire to provide for compliance with the Securities Act and for the registration of the re-sale by the holders of the Registrable Securities upon the terms and subject to conditions set forth below; and WHEREAS, the Investment Agreement provides for the execution and delivery of this Agreement; and WHEREAS, the Investors intend to purchase additional WPS Shares through a tender offer, and the Investors desire to receive the right to register any shares acquired through such tender offer. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, the parties hereto hereby agree as follows: Section 1. Certain Definitions. As used in this Agreement, the following terms shall have the following meanings: "Business Day" means any day on which the commercial banks are open for business in New York, New York. "Commission" means the United States Securities and Exchange Commission and any successor federal agency having similar powers. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Existing Registration Rights Agreement" means that certain Shareholders Agreement, dated as of May, 1996 by and between WPS and the investors listed therein, as amended by Amendment Number 1, dated December 29, 2000 to the 1996 Shareholders Agreement. "Holder" means the Shareholders and any donee, partner, member or Shareholder of any of them to whom Registrable Securities are transferred. "Permitted Transferee" shall mean (i) a Holder, (ii) a person who is the parent, sibling, or lineal descendant, by blood or legal adoption, of a Holder and the estate of any such person, (iii) the spouse of a Holder, (iv) the trustee or trustees of an inter vivos or testamentary trust created by a Holder, alone or with others, for the primary benefit of a person or persons described in clause (i), (ii), or (iii), or (v) any person that directly or indirectly controls, is controlled by, or is under common control with such person. "Primary WPS Shares" means any and all newly issued WPS Shares acquired by the Investors pursuant to the Investment Agreement. The terms "register", "registered" and "registration" refer to a registration effected by preparing and filing with the Commission a registration statement in compliance with the Securities Act, and the declaration or ordering by the Commission of the effectiveness of such registration statement. "Registrable Securities" means (i) any and all of the Primary WPS Shares, (ii) any and all Tendered WPS Shares, and (iii) any other securities issued or issuable with respect to any WPS Shares described in clause (i) or (ii) above by way of a stock dividend or stock split or in connection with a combination, exchange, reorganization, recapitalization or reclassification of WPS's securities or pursuant to a merger, consolidation or other similar business combination transaction involving WPS. "Registration Expenses" means all expenses incurred by WPS in connection with the registration of the Registrable Securities, including, without limitation, all registration and filing fees (including fees and expenses associated with filings required to be made with the New York Stock Exchange or such other exchange on which the WPS Shares may be listed), printing expenses (including expenses of printing certificates for the WPS Shares being registered in a form eligible for deposit with the Depository Trust Company and of printing prospectuses), fees and disbursements of counsel for WPS and fees and expenses of compliance with state securities or "Blue Sky" laws, WPS's accountants' fees and expenses, transfer taxes, fees of transfer agents and registrars, costs of insurance, and reasonable fees and disbursements of one counsel to represent the Holders (such fees not to exceed $10,000), but specifically excluding any and all fees, commission, discounts or similar payments made to any underwriters, brokers or dealers in connection with the selling of any Registrable Securities. "Tendered WPS Shares" means any and all WPS Shares acquired pursuant to a tender offer commenced by the Investors on or before May 28, 2008. 2 Section 2. Restrictions on Transfer. (a) Restrictions. Each Holder agrees that such Holder will not sell, assign, transfer or otherwise dispose of (each, a "Transfer") any of the Primary WPS Shares (or any interest therein) except upon the terms and conditions specified herein, and such Holder will cause any subsequent holder of such Holder's Primary WPS Shares to agree to take and hold the Primary WPS Shares subject to the terms and conditions of this Agreement if such Primary WPS Shares are required to include a legend pursuant to Section 2(b) hereof. (b) Legend. Each certificate representing Primary WPS Shares issued to the Holders or to any subsequent holder of such shares shall include a legend in substantially the following form; provided, however, that such legend shall not be required if (i) a Transfer is being made in connection with a sale of Primary WPS Shares registered under the Securities Act or in connection with a sale in compliance with Rule 144 under the Securities Act (each, a "Public Sale"), or (ii) the opinion of counsel referred to in Section 2(d) hereof is to the further effect that neither such legend nor the restrictions on transfer in this Section 2 are required in order to ensure compliance with the Securities Act: "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended, or securities laws of any state, and may not be sold, transferred, assigned, pledged or hypothecated unless and until, either (A) registered under such Act and/or applicable state securities laws, or (B) WPS has received an opinion of counsel or other evidence, reasonably satisfactory to WPS and its counsel, that such registration is not required." (c) Notices of Transfer. Prior to any proposed Transfer of any Primary WPS Shares other than pursuant to an offering registered under the Securities Act, the Holder proposing to make such Transfer shall give written notice to WPS of such Holder's intention to effect such Transfer, which notice shall set forth the date of such proposed Transfer. Such Holder also shall furnish to WPS (i) a written agreement by the proposed Transferee that it is taking and holding the same subject to the terms and conditions specified in this Agreement, except with respect to any Primary WPS Shares which are being sold in a Public Sale and (ii) except with respect to any Primary WPS Shares which have been registered under the Securities Act, a written opinion of such Holder's counsel, in form reasonably satisfactory to WPS, to the effect that the proposed Transfer may be effected without registration under the Securities Act. (d) Termination of Restrictions. The legend set forth in this Section 2 may be removed and any related restrictions shall terminate and cease to be effective with respect to any of the Primary WPS Shares (i) upon the sale of any such Primary WPS Shares, if the Primary WPS Shares in respect of which such sale occurs have been registered under the Securities Act, (ii) upon receipt by WPS of an opinion of counsel (which counsel is reasonably acceptable to WPS), in form reasonably satisfactory to WPS, to the effect that compliance with such restrictions is not necessary in order to comply with the Securities Act with respect to the Transfer of such WPS Shares, or (iii) upon the 3 expiration of the one-year period referred to in Rule 144(b)(1) under the Securities Act (as such Rule may be amended from time to time), if, pursuant to Rule 144(b)(1), such Holder was not an "affiliate" of WPS (as such term is defined in Rule 144(a) under the Securities Act) at the time of the sale of the WPS Shares and has not been an affiliate of WPS during the preceding ninety (90) days. Section 3. Registration under Securities Act; Indemnification. (a) (i) Request for Registration. If WPS shall receive from any of the Holders at any time that is at least one (1) year after the Closing Date (as that term is defined in the Investment Agreement) a written request that WPS effect a registration with respect to a number of WPS Shares not less than (x) 25% of the total Registrable Securities (but subject to a minimum of two million (2,000,000) WPS Shares) held by the Investors or (y) five million (5,000,000) WPS Shares, WPS will: (A) promptly give written notice of the proposed registration to all other Holders; and (B) as soon as reasonably practicable, but in any event not more than thirty (30) days after the date of such written notice (subject to the need to respond to the Commission's comments on the registration statement), use its best commercially reasonable efforts to effect such registration by filing a registration statement with the Commission on Form F-1 or Form F-3 (the "Registration Statement") (including, without limitation, filing post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws, and appropriate compliance with the Securities Act) or other such available form as would permit or facilitate the sale and distribution of all or such portion of such Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any Holder or Holders joining in such request received by WPS within ten (10) days after such written notice from WPS is mailed or delivered; provided, however, that (i) only one (1) such request may be made by Holders for registration on Form F-1, (ii) only three (3) total requests may be made by the Holders for registration on Form F-3, and (iii) the Investors may not make a request for registration within six (6) months after the date of effectiveness of a Registration Statement in response to a previous request for registration. (ii) Effectiveness. WPS shall use all commercially reasonable efforts to cause the Registration Statement to be declared effective by the Commission under the Securities Act as soon as practicable after filing. (iii) Effective Period. WPS agrees to use its best efforts to keep all Registration Statements continuously effective for a period commencing on the effective date thereof and terminating on the date on which such Holders are able to sell their Registrable Securities under the provisions of Rule 144 without restriction (other than the current public information requirement set forth in Rule 144(c)(1)) (the "Effective Period"); provided that, the Effective Period shall, in all events, terminate at such time as all the Registrable Securities covered by the Registration Statement have been sold. 4 (iv) Black-out Period. Without limiting the provisions of Section 3(a)(iii), each Holder of Registrable Securities agrees by acquisition of such Registrable Securities, if so requested by WPS, not to effect any sale of Registrable Securities pursuant to a Registration Statement, and WPS may postpone the filing or the effectiveness of any registration requested pursuant to this Section 3 for any period deemed necessary (A) by WPS or any underwriter in connection with the offering of WPS Shares by WPS for its own account, (B) by WPS in connection with any proposal or plan by WPS to engage in any financing or acquisition or disposition by WPS or any subsidiary thereof of the shares or substantially all the assets of any other person (other than in the ordinary course of business), any tender offer or any merger, consolidation, corporate reorganization or restructuring or other similar transaction (each, a "Business Combination"), in each case material to WPS and its subsidiaries taken as a whole, or (C) by WPS if (i) an event other than an event specified in paragraph (B) above occurs and is continuing as a result of which the Registration Statement, the prospectus included in the Registration Statement, any amendment or supplement thereto or any document incorporated by reference therein would, in WPS's judgment, contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) WPS determines in good faith that the disclosure of such event at such time could be seriously detrimental to WPS or its subsidiaries. Any period within the Effective Period during which WPS fails to keep the Registration Statement effective and usable for resales of Registrable Securities, requires pursuant to this Section 3(a)(iv) that the Holders not effect sales of Registrable Securities pursuant to the Registration Statement or postpones the filing or the effectiveness of any requested registration, is hereafter referred to as a "Suspension Period." A Suspension Period shall commence on the date set forth in a written notice by WPS (which WPS shall use good faith efforts (consistent with legal and contractual obligations) to deliver to each Holder not less than three (3) business days in advance of any proposed or anticipated suspension date) addressed to the Holders that the Registration Statement is no longer effective or that the prospectus included in a Registration Statement is no longer usable for resales of Registrable Securities or, in the case of a suspension pursuant to this Section 3(a)(iv) the date specified in the notice delivered by WPS pursuant to this Section 3(a)(iv), and shall end on the date when each Holder of Registrable Securities covered by the Registration Statement either receives the copies of a supplemented or amended prospectus or is advised in writing by WPS that use of the prospectus or sales may be resumed. Notwithstanding anything to the contrary herein: (1) any Suspension Period commenced under clause (A) of this Section 3(a)(iv) with respect to an underwritten offering of WPS's securities which the managing underwriter thereof has determined is necessary shall not exceed 90 days, and (2) all Suspension Periods commenced under clause (B) or clause (C) of this Section 3(a)(iv) with respect to which WPS is the acquiring party of the subject Business Combination shall not, in the aggregate, exceed 90 days in any 12-month period. Each Holder also agrees that at any time such Holder is an employee or director of WPS, such Holder will be subject to and comply with the policies of WPS regarding purchases and sales of WPS Common Stock; to the extent applicable to such Holder. The Holders acknowledge that such policy may be changed by WPS from time to time. 5 (b) WPS Registration. (i) If, at any time that is at least one (1) year after the Closing Date (as that term is defined in the Investment Agreement) WPS shall determine to register any of its securities either for its own account or the account of a security holder or holders exercising their respective demand registration rights, other than a registration on Form F-4, Form F-7, Form F-8, Form S-8 or a registration on any registration form that does not permit secondary sales, WPS will: (A) promptly give to each Holder written notice thereof; and (B) use its best commercially reasonable efforts to include in such registration (and any related qualification under blue sky laws or other compliance), and in any underwriting involved therein, all the Registrable Securities specified in a written request or requests, made by any Holder within thirty (30) days after the written notice from WPS described in clause (i) above is given. Such written request may specify all or a part of a Holder's Registrable Securities. (ii) If the registration of which WPS gives notice is for a registered public offering involving an underwriting, WPS shall so advise the Holders as a part of the written notice given pursuant to Section 3(b)(i). In such event, the right of any Holder to registration pursuant to this Section 3 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with WPS and the other holders of securities of WPS with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by WPS. (iii) Notwithstanding any other provision of this Section 3, if the representative of the underwriters reasonably advises WPS in writing that marketing factors require a limitation on the number of shares to be underwritten, WPS may limit, to the extent so reasonably advised by the underwriters, the amount of securities to be included in the registration by WPS's shareholders (including the Holders pro rata among the requesting holders of Registrable Securities and the holders of other WPS Shares who have and are exercising registration rights pursuant to the Existing Registration Rights Agreement in conjunction with the Investors' exercise of rights under this Section 3 based upon the aggregate number of WPS Shares owned by such holders). WPS shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated first to WPS for securities being sold for its own account. If any person does not agree to the terms of any such underwriting, he shall be excluded therefrom by written notice from WPS or the underwriter. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall be withdrawn from such registration. 6 (iv) If shares are so withdrawn from the registration or if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors, WPS shall then offer to all persons who have retained the right to include securities in the registration the right to include additional securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated pro-rata among the persons requesting additional inclusion. (c) Registration Procedures. WPS shall: (i) cause the Registration Statement and the related prospectus and any amendment or supplement thereto, as of the effective date of the Registration Statement, or such amendment or supplement, (A) to comply in all material respects with the applicable requirements of the Securities Act and the rules and regulations of the Commission promulgated under the Securities Act and (B) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) promptly prepare and file with the Commission such amendments and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement until the earlier of (A) such time as all such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the Holder or Holders thereof set forth in the Registration Statement (which shall not include, without the consent of WPS (which may be granted or withheld in WPS's sole discretion) an underwritten offering), or (B) the date on which such Holders are able to sell their Registrable Securities under the provisions of Rule 144 without restriction (other than the current public information requirement set forth in Rule 144(c)(1)); (iii) furnish to the Investors such number of conformed copies of such Registration Statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus included in the Registration Statement (including any summary prospectus), in conformity with the requirements of the Securities Act, and such documents, if any, as may be incorporated by reference in the Registration Statement or prospectus, as each Holder may reasonably request; (iv) use its best efforts to register or qualify all Registrable Securities and other securities covered by the Registration Statement under such securities or Blue Sky laws of the states of the United States as each Holder of such Registrable Securities shall reasonably request, to keep such registration or qualification in effect for so long as the Registration Statement remains in effect (subject to the limitations in Section 3(a)), and do any and all other acts and things which may be necessary or advisable to enable such Holder to consummate the disposition in such jurisdictions of its Registrable Securities covered by such Registration Statement, except that WPS shall not for any 7 such purpose be required to register or qualify generally to do business as a foreign corporation in any jurisdiction in which it is not and would not, but for the requirements of this Section 3(c)(iv), be obligated to be so qualified, or to subject itself to taxation in any such jurisdiction, or to consent to general service of process in any such jurisdiction; (v) immediately notify the Holders at any time when a prospectus or prospectus supplement relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as a result of which, the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing which untrue statement or omission requires amendment of the Registration Statement or supplementation of the prospectus, and promptly thereafter prepare and furnish to each Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; provided, however, that each Holder of Registrable Securities registered pursuant to the Registration Statement agrees that such Holder will not sell any Registrable Securities pursuant to the Registration Statement during the time that WPS is preparing and filing with the Commission a supplement to or an amendment of such prospectus or registration statement; (vi) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission; and (vii) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the Registration Statement from and after a date not later than the effective date of the Registration Statement. Each Holder of Registrable Securities as to which any registration is being effected shall furnish to WPS such information regarding such Holder and the distribution of such Registrable Securities as WPS may from time to time reasonably request and as shall be required by law or by the Commission in connection therewith. In furtherance and not in limitation of the foregoing, each Shareholder, at the Closing (and each transferee of each Shareholder and of any subsequent Holder, at the time of such Transfer), shall provide WPS with such Holder's mailing and personal delivery (if different) addresses, and shall promptly notify WPS in writing with any changes thereto after the date hereof and during the Effective Period. (d) Indemnification. (i) Indemnification by WPS. WPS shall indemnify and hold harmless each Holder of Registrable Securities and its officers, directors, employees and controlling persons whose securities are covered by the Registration Statement from and against any demands, claims, actions or causes of action, assessments, losses, damages, liabilities, interest and penalties, costs and expenses (including, without limitation, 8 reasonable legal fees and disbursements incurred in connection therewith and in seeking indemnification therefor, and any amounts or expenses required to be paid or incurred in connection with any action, suit, proceeding, claim, appeal, demand, assessment or judgment) (individually, a "Loss" and, collectively "Losses"), joint or several, to which such Holder may become subject under the Securities Act or otherwise insofar as such Losses (or related actions or proceedings) arise out of or are based upon (A) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to the Registration Statement, or any document incorporated by reference in the Registration Statement or (B) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that WPS shall not be liable in any such case to the extent that any such Losses (or actions or proceedings in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission of a material fact made in the Registration Statement, or any such final prospectus, summary prospectus, amendment or supplement, as the case may be, in reliance upon and in conformity with information furnished to WPS by such Holder specifically for use in the preparation of such Registration Statement, or any such final prospectus, summary prospectus, amendment or supplement, as the case may be. (ii) Indemnification by the Holders. Each Holder of Registrable Securities, severally and not jointly, shall indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 3(d)(i) hereof) WPS, each director of WPS, each officer of WPS who shall sign the Registration Statement and each other person, if any, who controls WPS within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, with respect to any untrue statement or alleged untrue statement in or omission or alleged omission from such registration statement, final prospectus or summary prospectus included in the Registration Statement, or any amendment or supplement to the Registration Statement, as the case may be, of a material fact if such statement or omission was made in reliance upon and in conformity with information furnished to WPS by such Holder specifically for use in the preparation of the Registration Statement, final prospectus, summary prospectus, amendment or supplement, as the case may be. (iii) Notice of Claims, etc. In the event that any of the indemnified parties under Section 3(d)(i) or 3(d)(ii) (each, an "Indemnified Party") is made a defendant in or party to any action or proceeding, judicial or administrative, instituted by any third party for the liability or the costs or expenses of which are Losses (any such third party action or proceeding being referred to as a "Claim"), the Indemnified Party shall give the party hereto obligated to indemnify such Indemnified Party (the "Indemnifying Party") prompt notice thereof. The failure to give such notice shall not affect any Indemnified Party's ability to seek reimbursement unless such failure has materially and adversely affected the Indemnifying Party's ability to defend successfully a Claim. The Indemnifying Party shall be entitled to contest and defend such Claim; provided, that the Indemnifying Party (i) has a reasonable basis for concluding that such defense may be successful and (ii) diligently contests and defends such Claim. Notice of the intention so to 9 contest and defend shall be given by the Indemnifying Party to the Indemnified Party within twenty (20) business days after the Indemnified Party's notice of such Claim (but, in all events, at least five (5) business days prior to the date that an answer to such Claim is due to be filed). Such contest and defense shall be conducted by reputable attorneys employed by the Indemnifying Party. The Indemnified Party shall be entitled at any time, at its own cost and expense (which expense shall not constitute a Loss unless (i) the Indemnified Party reasonably determines that the Indemnifying Party is not adequately representing or, because of a conflict of interest, may not adequately represent, any interests of the Indemnified Parties, or (ii) the Indemnified Party has available to it reasonable defenses which are different from or additional to those available to the Indemnifying Party, and only to the extent that such expenses are reasonable), to participate in such contest and defense and to be represented by attorneys of its or their own choosing. If the Indemnified Party elects to participate in such defense, the Indemnified Party will cooperate with the Indemnifying Party in the conduct of such defense. Neither the Indemnified Party nor the Indemnifying Party may concede, settle or compromise any Claim without the consent of the other party, which consents will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Claim seeks the issuance of an injunction, the specific performance of an obligation or similar remedy or (ii) if the subject matter of a Claim relates to the ongoing business of the Indemnified Party, which Claim, if decided against the Indemnified Party, would materially adversely affect the ongoing business or reputation of the Indemnified Party, then, in each such case, the Indemnified Party alone shall be entitled to contest, defend and settle such Claim in the first instance and, if the Indemnified Party does not contest, defend or settle such Claim, the Indemnifying Party shall then have the right to contest and defend (but not settle) such Claim. Subject to the foregoing limitations, each Indemnifying Party shall reimburse each Indemnified Party for all legal or other reasonable expenses incurred by such Indemnified Party in connection with the investigation or defense of any such action or claim as such expenses are incurred. (iv) Other Indemnification. Indemnification similar to that specified in Sections 3(d)(i) and 3(d)(ii) hereof (with appropriate modifications) shall be given by WPS and each Holder of Registrable Securities with respect to any required registration or other qualification of such Registrable Securities under any federal or state law or regulation of governmental authority other than the Securities Act. (v) Contribution. If the indemnification provided for in this Section 3(d) is unavailable or insufficient to hold harmless an Indemnified Party in respect of any Losses, then each Indemnifying Party shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such Indemnified Party as a result of such Losses in such proportion as appropriate to reflect the relative fault of WPS, on the one hand, and such Holder, on the other hand, and to the parties' relative intent, knowledge, access to information and opportunity to correct or mitigate the damage in respect of or prevent any untrue statement or omission giving rise to such indemnification obligation. WPS and the Holders agree that it would not be just and equitable if contributions pursuant to this Section 3(d)(v) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which did not take account 10 of the equitable considerations referred to above in this Section 3(d)(v). No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who is not guilty of such fraudulent misrepresentation. (e) Registration Expenses. WPS shall bear all Registration Expenses. Section 4. Termination. The rights and obligations under this Agreement (other than under Sections 3(d) and 3(e) hereof) shall automatically terminate upon the earlier to occur of (a) the sale of all Registrable Securities by the Holders and (b) the end of the Effective Period. Section 5. Amendments and Waivers. This Agreement may be amended or modified and WPS may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if WPS shall have obtained the written consent to such amendment, modification, action or omission to act, of the holder or holders (at such time) of 51% or more of the shares of Registrable Securities (and, in the case of any amendment, modification, action or omission to act which adversely affects any specific holder of Registrable Securities or a specific group of holders of Registrable Securities, the written consent of each such holder or holders of 51% or more of the Registrable Securities held by such group). Each holder of any Registrable Securities at the time shall be bound by any consent authorized by this Section 5, whether or not such Registrable Securities shall have been marked to indicate such consent. Section 6. Reports under Securities Exchange Act of 1934. With a view to making available to the Holders the benefit of Rule 144 promulgated under the Securities Act (or any successor rule or regulation thereunder that may at any time permit a Holder to sell securities of WPS to the public without registration), WPS agrees to: (a) For a period commencing on the Closing Date and terminating one year following the Closing Date, to maintain registration of its common stock under Section 12 of the Exchange Act and to file all reports and other documents required of WPS under the Securities Act and Exchange Act (other than Reports on Form 6-K); and (b) furnish to any Holder, so long as the Holder owns Registrable Securities, promptly upon request: (i) a written statement by WPS that it has complied with the reporting requirements of Rule 144(c); and (ii) such other information as may be reasonably requested, if any, in availing any Holder of any successor rule or regulation under the Securities Act to Rule 144 to permit the selling of any such securities without registration. Section 7. Nominees for Beneficial Owners. In the event that any Registrable Securities are held by a nominee for the beneficial owner thereof, the beneficial owner thereof may, at its election, be treated as the holder of such Registrable Securities for purposes of any request or other action by any holder or holders of Registrable Securities pursuant to this Agreement or any 11 determination of any number or percentage of shares of Registrable Securities held by any holder or holders of Registrable Securities contemplated by this Agreement. If the beneficial owner of any Registrable Securities so elects, WPS may require assurances reasonably satisfactory to it of such owner's beneficial ownership of such Registrable Securities. Section 8. Notices. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given when personally delivered, or one business day after being sent by a nationally recognized overnight courier, or three days after being mailed by first class mail, return receipt requested, or when receipt is acknowledged, if sent by facsimile, telecopy or other electronic transmission device (provided a confirmation copy is sent via a nationally recognized overnight courier). Notices, demands and communications to WPS and the Holders will, unless another address is specified in writing, be sent to the address indicated below: if to Investors: Arrow Capital Management, LLC 499 Park Avenue, 10th Floor New York, NY 10022 Telephone No: (212) 243-7338 Fax No: (212) 243-2195 Attention: Quinn Martin, Jr. with a copy to: Post Heymann & Koffler LLP Two Jericho Plaza, Wing A Jericho, NY 11753 Telephone No: (516) 681-3636 Fax No: (516) 433-2777 Attention: David J. Heymann if to WPS: W.P. Stewart & Co., Ltd. Trinity Hall 43 Cedar Avenue Hamilton HM 12 Bermuda Telephone No: (441) 295-8585 Fax No: (441) 296-6823 Attention: Seth Pearlstein 12 with a copy to: Dorsey & Whitney LLP 250 Park Avenue New York, NY 10177-1500 Telephone No: (212) 415-9200 Fax No: (212) 953-7201 Attention: Barry Wade If notice is given pursuant to this Section 8 of any assignment to a permitted successor or assignee of a party hereto, the notice shall be given as set forth above to such successor or the assignee of such party. Section 9. Entire Agreement. This Agreement represents the entire agreement and understanding between WPS and the other parties to this Agreement in respect of the subject matter contained herein. There are no restrictions, promises, warranties, or undertakings, other than those set forth or referred to herein or in the Investment Agreement, with respect to the registration rights granted by WPS with respect to the Registrable Securities. This Agreement and the Investment Agreement supersede all prior agreements and understandings between the parties with respect to the subject matter of this Agreement. Section 10. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of New York (other than its rules of conflicts of laws to the extent the application of the laws of another jurisdiction would be required thereby). Section 11. Severability. If any provision of this Agreement or the application thereof to any person or circumstances is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination, the parties shall negotiate in good faith in an effort to agree upon a suitable and equitable substitute provision to affect the original intent of the parties. Section 12. Assignment of Registration Rights. The rights to cause WPS to register Registrable Securities pursuant to Section 3 may be assigned by any Holder to a Permitted Transferee, and by such transferee to a subsequent Permitted Transferee, but only if such rights are transferred no earlier than one (1) year after the Closing Date and if such rights are transferred in connection with the sale or other transfer of not less than an aggregate of five million (5,000,000) Registrable Securities. Any transferee to whom rights under this Agreement are transferred shall (i) as a condition to such transfer, deliver to WPS a written instrument by which such transferee agrees to be bound by the obligations imposed upon Holders under this Agreement to the same extent as if such transferee were a Holder under this Agreement and (ii) be deemed to be a Holder hereunder. 13 Section 13. Miscellaneous. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning of this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. * * * * * 14 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. Arrow Masters LP Arrow Partners LP By: Arrow Advisors LLC By: Arrow Advisors LLC General Partner General Partner By: /s/ Alexandre von Furstenberg By: /s/ Alexandre von Furstenberg ----------------------------- ------------------------------- Alexandre von Furstenberg Alexandre von Furstenberg Co-Managing Member Co-Managing Member By: /s/ Mal Serure By: /s/ Mal Serure ----------------------------- ------------------------------- Mal Serure Mal Serure Co-Managing Member Co-Managing Member Arrow Offshore, Ltd. W.P. Stewart & Co., Ltd. By: /s/ Mal Serure By: /s/ William P. Stewart ----------------------------- ------------------------------- Mal Serure William P. Stewart Director Chief Executive Officer 15 EX-99.(D)(3) 11 e603876_ex99-d3.txt WILLIAM P. STEWART, JR. May 20, 2008 Arrow Offshore Ltd. Arrow Partners LP Arrow Masters LP c/o Arrow Capital Management, LLC 499 Park Avenue, 10th Floor New York, NY 10022 Re: Agreement to Tender Gentlemen: In consideration of Purchasers (as defined below) making a tender offer (the "Offer") for up to 19,902,000 outstanding shares of common stock, $0.001 par value (the "Common Shares"), of W.P. Stewart & Co. Ltd. (the "Company") in accordance with the Investment Agreement (as defined below), I hereby agree as follows: 1. Capitalized terms used and not defined herein shall have the respective meanings ascribed to such terms in the Investment Agreement, dated as of May 20, 2008 (the "Investment Agreement"), between Arrow Offshore Ltd, Arrow Partners LP, Arrow Masters LP (collectively, "Purchasers") and the Company. 2. Immediately prior to the expiration of the Offer, I hereby agree to tender in the Offer and not withdraw such number of Common Shares, if any, distributed in the WPS II Distribution (as defined below) to the trusts of which I am a trustee as equals the greater of (i) zero or (ii) (x) the difference between 2,400,000 and the total number of Common Shares tendered by other shareholders in the Offer and not withdrawn (other than any Common Shares required to be tendered pursuant to the Kahn Letter Agreement) (the "Tendered Shares"), multiplied by (y) the Fraction (and, if applicable, rounded to the nearest whole number); provided that the number of Common Shares I hereby agree to tender shall in no event exceed 1,950,000. As used herein, (a) "WPS II Distribution" means the distribution by WPS II, Inc. a Delaware corporation ("WPS II"), to its stockholders on or about June 3, 2008 of 25% of the Common Shares owned by WPS II (provided the proposed dissolution of WPS II is approved by its stockholders). (b) "Kahn Letter Agreement" means that certain letter agreement of even date herewith between Robert Kahn and Purchasers. (c) "Fraction" means 1,950,000 divided by 2,400,000. 3. Immediately prior to the expiration of the Offer, the Company and Purchasers shall jointly notify me of, and represent and warrant to me as to, the number of Tendered Shares. If I am required to tender any Common Shares in the Offer pursuant to paragraph 1 above (or if, in my absolute and sole discretion, I elect to tender any Common Shares notwithstanding this letter agreement), I hereby authorize the Company to deliver a notice of guaranteed delivery from me with respect to such shares. Notwithstanding anything in this letter agreement to the contrary, if as of immediately prior to the expiration of the Offer I have already tendered in the Offer and not withdrawn any Common Shares, such Common Shares shall be credited against the number of Common Shares, if any, that I am required to tender pursuant to this letter agreement. 4. Notwithstanding the foregoing, this letter agreement shall terminate automatically and be of no further force or effect if at any time prior to the expiration of the Offer (i) the Per Share Amount is less than $1.60 or (ii) the Company terminates the Investment Agreement in accordance with Section 7.1(d)(ii) thereof. This letter agreement (i) will in all respects be interpreted, construed and governed by and in accordance with the laws of the State of New York, disregarding any conflict of laws provisions that may require the application of the law of another jurisdiction, (ii) constitutes the entire agreement and understanding between Purchasers and the undersigned with respect to the subject matter hereof and supersedes all previous agreements, understanding or discussions with respect to the subject matter hereof, (iii) may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute and be the same instrument, and (iv) may be amended only in a writing signed by each party hereto. [Signature page follows] -2- If the foregoing is in accordance with your understanding, please sign this letter agreement in the space provided below. Very truly yours, /s/ William P. Stewart, Jr. --------------------------- William P. Stewart, Jr. ACCEPTED AND AGREED: ARROW MASTERS LP By: Arrow Advisors LLC General Partner By: /s/ Alexandre von Furstenberg ----------------------------- Alexandre von Furstenberg Co-Managing Member By: /s/ Mal Serure ----------------------------- Mal Serure Co-Managing Member ARROW PARTNERS LP By: Arrow Advisors LLC General Partner By: /s/ Alexandre von Furstenberg ----------------------------- Alexandre von Furstenberg Co-Managing Member By: /s/ Mal Serure ----------------------------- Mal Serure Co-Managing Member ARROW OFFSHORE, LTD. By: /s/ Mal Serure ----------------------------- Mal Serure Director [SIGNATURE CONTINUED ON FOLLOWING PAGE] -3- W.P. STEWART & CO. LTD. By: /s/ Susan G. Leber ----------------------------- Susan G. Leber Managing Director-Chief Financial Officer -4- EX-99.(D)(4) 12 e603876_ex99-d4.txt ROBERT L. KAHN May 20, 2008 Arrow Offshore Ltd. Arrow Partners LP Arrow Masters LP c/o Arrow Capital Management, LLC 499 Park Avenue, 10th Floor New York, NY 10022 Re: Agreement to Tender Gentlemen: In consideration of Purchasers (as defined below) making a tender offer (the "Offer") for up to 19,902,000 outstanding shares of common stock, $0.001 par value (the "Common Shares"), of W.P. Stewart & Co. Ltd. (the "Company") in accordance with the Investment Agreement (as defined below), I hereby agree as follows: 1. Capitalized terms used and not defined herein shall have the respective meanings ascribed to such terms in the Investment Agreement, dated as of May 20, 2008 (the "Investment Agreement"), between Arrow Offshore Ltd, Arrow Partners LP, Arrow Masters LP (collectively, "Purchasers") and the Company. 2. Immediately prior to the expiration of the Offer, I hereby agree to tender in the Offer and not withdraw such number of Common Shares, if any, distributed in the WPS II Distribution (as defined below) to me as equals the greater of (i) zero or (ii) (x) the difference between 2,400,000 and the total number of Common Shares tendered by other shareholders in the Offer and not withdrawn (other than any Common Shares required to be tendered pursuant to the Stewart Letter Agreement) (the "Tendered Shares"), multiplied by (y) the Fraction (and, if applicable, rounded to the nearest whole number); provided that the number of Common Shares I hereby agree to tender shall in no event exceed 450,000. As used herein, (a) "WPS II Distribution" means the distribution by WPS II, Inc. a Delaware corporation ("WPS II"), to its stockholders on or about June 3, 2008 of 25% of the Common Shares owned by WPS II (provided the proposed dissolution of WPS II is approved by its stockholders). (b) "Stewart Letter Agreement" means that certain letter agreement of even date herewith between William P. Stewart, Jr. and Purchasers. (c) "Fraction" means 450,000 divided by 2,400,000. 3. Immediately prior to the expiration of the Offer, the Company and Purchasers shall jointly notify me of, and represent and warrant to me as to, the number of Tendered Shares. If I am required to tender any Common Shares in the Offer pursuant to paragraph 1 above (or if, in my absolute and sole discretion, I elect to tender any Common Shares notwithstanding this letter agreement), I hereby authorize the Company to deliver a notice of guaranteed delivery from me with respect to such shares. Notwithstanding anything in this letter agreement to the contrary, if as of immediately prior to the expiration of the Offer I have already tendered in the Offer and not withdrawn any Common Shares, such Common Shares shall be credited against the number of Common Shares, if any, that I am required to tender pursuant to this letter agreement. 4. Notwithstanding the foregoing, this letter agreement shall terminate automatically and be of no further force or effect if at any time prior to the expiration of the Offer (i) the Per Share Amount is less than $1.60 or (ii) the Company terminates the Investment Agreement in accordance with Section 7.1(d)(ii) thereof. This letter agreement (i) will in all respects be interpreted, construed and governed by and in accordance with the laws of the State of New York, disregarding any conflict of laws provisions that may require the application of the law of another jurisdiction, (ii) constitutes the entire agreement and understanding between Purchasers and the undersigned with respect to the subject matter hereof and supersedes all previous agreements, understanding or discussions with respect to the subject matter hereof, (iii) may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute and be the same instrument, and (iv) may be amended only in a writing signed by each party hereto. [Signature page follows] -2- If the foregoing is in accordance with your understanding, please sign this letter agreement in the space provided below. Very truly yours, /s/ Robert L. Kahn ------------------ Robert L. Kahn ACCEPTED AND AGREED: ARROW MASTERS LP By: Arrow Advisors LLC General Partner By: /s/ Alexandre von Furstenberg ----------------------------- Alexandre von Furstenberg Co-Managing Member By: /s/ Mal Serure ----------------------------- Mal Serure Co-Managing Member ARROW PARTNERS LP By: Arrow Advisors LLC General Partner By: /s/ Alexandre von Furstenberg ----------------------------- Alexandre von Furstenberg Co-Managing Member By: /s/ Mal Serure ----------------------------- Mal Serure Co-Managing Member ARROW OFFSHORE, LTD. By: /s/ Mal Serure ----------------------------- Mal Serure Director [SIGNATURE CONTINUED ON FOLLOWING PAGE] -3- W.P. STEWART & CO. LTD. By: /s/ Susan G. Leber ----------------------------- Susan G. Leber Managing Director-Chief Financial Officer -4- EX-99.(D)(5) 13 e603876_ex99-d5.txt April 16, 2008 Confidential Merrill Lynch & Co. 4 World Financial Center New York, NY 10080 Attn: Merry Yuan Ladies and Gentlemen: In connection with a possible strategic relationship or transaction between the undersigned company (W.P. Stewart & Co. Ltd. or the "Company"), or an Affiliate (as defined below) of the Company, and Arrow Capital Management, LLC ("Arrow"), or an Affiliate of Arrow (a "Transaction"), the Company and Arrow (or the Affiliates of either party) may make available to each other certain information concerning their respective business, financial condition and operations. Each party agrees to treat, and will cause its directors, officers, employees, Affiliates, agents, industry consultants, potential financing sources and advisers (collectively, the "Representatives") that receive any Evaluation Material (as defined below) to treat, all Evaluation Material in accordance with the provisions of this letter agreement. The term "Evaluation Material" means any information concerning a party and any entity controlling, controlled by or under common control with the party (in each case, an "Affiliate") (whether prepared by such party or by any Representative of such party or otherwise and irrespective of the form of the information or the manner in which it is communicated) furnished by such party or its Representatives to the other party or any of its Representatives in connection with a possible Transaction, together with all notes, analyses, compilations, studies, interpretations or other documents prepared by the receiving party or any of its Representatives which contain, reflect or are based on any of the information furnished. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving party or any of its Representatives in breach of this letter agreement, (ii) was within the possession of the receiving party or its Representatives prior to its being furnished by or on behalf of the disclosing party, or becomes available to a party or its Representatives on a non-confidential basis from a source other than the disclosing party or any of its Representatives, provided in either case that the source of such information was not known by the receiving party or any of its Representatives to be bound by a confidentiality agreement with, or contractual, legal or fiduciary obligation of confidentiality to, the disclosing party or any of its Affiliates with respect to such information, or (iii) is independently developed by a party or its Representatives without use of or reference to the Evaluation Material. Each party agrees to use, and to cause its Representatives to use, the Evaluation Material solely for the purpose of evaluating a possible Transaction. Each party and its Representatives shall keep the Evaluation Material confidential and will not disclose any of the Evaluation Material; provided, however, that each party may make disclosure of such information (i) to any of its Representatives for the sole purpose of evaluating a possible Transaction, if such Representative is required to comply with the terms of this letter agreement, and (ii) as required to comply with all applicable laws, rules or regulations, including applicable rules of any securities exchange, subject to the provisions of the paragraph of this letter agreement immediately following this paragraph. Each party agrees, at its sole expense, to take reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material. In the event that a party or its Representatives are, pursuant to applicable law, requested or required to disclose any of the Evaluation Material disclosed by or on behalf of the other party, to the extent permissible by law, such receiving party shall provide the disclosing party with prompt written notice of such request or requirement so that the disclosing party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver, a receiving party or any of its Representatives are, nonetheless, legally compelled to disclose Evaluation Material, such party or Representative may, without liability hereunder, disclose only that portion of the Evaluation Material which counsel advises is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material. At any time upon the written request of a disclosing party for any reason, the receiving party will promptly destroy or deliver to the disclosing party all Evaluation Material (including all copies thereof) furnished to it or to its Representatives. In the event that any Evaluation Material is destroyed (rather than returned), the receiving party shall, at the request of the disclosing party, deliver to the disclosing party a certification or other reasonably satisfactory evidence of such destruction. Notwithstanding the foregoing, either party may retain any information to the extent necessary pursuant to legal or regulatory requirements. Notwithstanding the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by its obligations of confidentiality under this letter agreement. Each party acknowledges that neither the other party nor its Representatives makes any representation or warranty hereunder as to the accuracy or completeness of the Evaluation Material, and that neither the other party nor its Representative shall have any liability hereunder relating to, or resulting from the use of, the Evaluation Material. Arrow and the Company each agree that, without the prior written consent of the other, it will not disclose, nor will any of its Representatives disclose, to any person the fact that the Evaluation Material has been made available to the other party, that discussions or negotiations are taking place concerning a possible Transaction involving Arrow and the Company or the shareholders of the Company or any of such Transaction's terms, conditions or other facts (including the status of any Transaction); provided, however, Arrow and the Company shall each be permitted to disclose such information if, in the opinion of its counsel, such disclosure is required by law, rule or regulation and then only after providing as much prior written notice to the other party of such disclosure as is practical under the circumstances and otherwise in compliance with the fourth paragraph of this letter agreement. Arrow and the Company each agree that for a period of two years from the date of this letter agreement, it will not, nor will any of its Affiliates, directly or indirectly (i) solicit for employment, or hire, any persons who are then employees of the other party or any of its Affiliates or (ii) contact or solicit any of the other party's clients or customers if the identity of any such persons and information about their relationship with Arrow or the Company, as applicable, was contained in any Evaluation Materials. Arrow and its Representatives are aware that the United States securities laws generally prohibit any person who has material non-public information about a company from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities while in possession of such information. Arrow agrees that until the expiration of three years from the date of this letter agreement, neither it nor its Affiliates will (a) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any securities or property of the Company or any of its subsidiaries, (b) except at the specific written request of the Company, propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (c) make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (d) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to any voting securities of the Company or any of its subsidiaries, (e) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) advise, assist or encourage any other persons in connection with any of the foregoing. Arrow also agrees during such period not to take any action which might require the Company to make a public announcement regarding the possibility of a business combination or merger. Arrow and the Company agree that no contract or agreement providing for a transaction will be deemed to exist between Arrow or its Affiliates and the Company or Affiliates of the Company unless and until a definitive written agreement relating to a transaction has been executed and delivered. Arrow and the Company agree that unless and until a definitive agreement has been executed and delivered, neither Arrow nor the Company nor any of their respective Affiliates has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this letter agreement or any other written or oral expression with respect to such transaction except for matters specifically agreed to in this letter agreement. It is understood that no failure or delay by either party in exercising any right, power or privilege shall operate as a waiver, nor shall any single or partial exercise preclude any other or further exercise or the exercise of any other right, power or privilege. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement, and that each party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be the exclusive remedies for a breach but shall be in addition to all other remedies available at law or equity to either party. This letter agreement shall be governed by and construed in accordance with the laws of the State of New York. Any claim related to this letter agreement shall be commenced, prosecuted or continued in the courts of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York, and each of the parties hereby submits to the exclusive jurisdiction of such courts. Except as otherwise provided herein, this letter agreement shall terminate and be of no further force and effect three years from the date hereof. Please confirm your agreement by signing one copy of this letter in the space provided below and returning the signed copy to the Company, whereupon this letter agreement shall become a binding agreement between us. Very truly yours, W.P. Stewart & Co. Ltd. By: /s/ Susan G. Leber ------------------------------- Name: Susan G. Leber Title: Managing Director - Chief Financial Officer Accepted and agreed to: Arrow Capital Management, LLC By: /s/ Mal Serure ------------------------------- Name: Mal Serure Title: Managing Member Dated: April 16, 2008 -----END PRIVACY-ENHANCED MESSAGE-----