AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 17, 2021
SECURITIES ACT FILE NO. 333-252772
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
FORM N-14
REGISTRATION STATEMENT
UNDER
|
|
| THE SECURITIES ACT OF 1933 |
|
|
|
|
| Pre-Effective Amendment No. [ ] |
|
|
|
|
| Post-Effective Amendment No. 2 |
|
|
THE MAINSTAY FUNDS
(exact name of registrant as specified in charter)
51 MADISON AVENUE,
NEW YORK, NEW YORK 10010
(address of principal executive offices)
REGISTRANT’S TELEPHONE NUMBER: (212) 576-7000
Copy to:
|
|
|
J. Kevin Gao, Esq. The MainStay Funds 30 Hudson Street Jersey City, NJ 07302 |
| Thomas C. Bogle, Esq. Corey F. Rose, Esq. Dechert LLP 1900 K Street, NW Washington, DC 20006 |
(NAME AND ADDRESS OF AGENT FOR SERVICE)
The purpose of this Post-Effective Amendment filing is to file the final and executed Agreement and Plan of Reorganization and the tax opinion for the reorganization of the MainStay MacKay U.S. Equity Opportunities Fund with and into MainStay WMC Enduring Capital Fund.
The Registrant hereby incorporates by reference the Information Statement/Prospectus and Statement of Additional Information filed as Parts A and B, respectively, in Post-Effective Amendment Number 1 to Registrant’s 485b filed on Form N-14 (File No. 333-252772) which became effective with the SEC under the Securities Act of 1933, as amended (the “1933 Act”) on March 22, 2021 (Accession Number 0001104659-21-039243).
THE MAINSTAY FUNDS
PART C
OTHER INFORMATION
ITEM 15. INDEMNIFICATION
The MainStay Group of Funds, which includes MainStay Funds Trust, MainStay VP Funds Trust and The MainStay Funds, maintains a joint directors and officers/errors and omissions (“D&O/E&O”) liability insurance policy and joint independent directors liability (“IDL”) insurance policy. The D&O/E&O liability insurance policy covers all of the directors and officers of the MainStay Group of Funds and the IDL insurance policy covers the independent directors only. Subject to the terms, conditions and retentions of the policies, insured persons are covered for claims made against them while acting in their official capacities with the MainStay Group of Funds.
Article IV of The MainStay Funds’ (“Registrant’s”) Declaration of Trust states as follows:
Section 4.3. Mandatory Indemnification.
(a) Subject to the exceptions and limitations contained in paragraph (b) below:
(i) every person who is, or has been, a Trustee or officer of the Trust shall be indemnified by the Trust, or by one or more Series thereof if the claim arises from his or her conduct with respect to only such Series, to the fullest extent permitted by law against all liability and against all expenses reasonably incurred or paid by him in connection with any claim, action, suit or proceeding in which he becomes involved as a party or otherwise by virtue of his being or having been a Trustee or officer and against amounts paid or incurred by him in the settlement thereof;
(ii) the words “claim,” “action,” “suit,” or “proceeding” shall apply to all claims, actions, suits or proceedings (civil, criminal, or other, including appeals), actual or threatened; and the words “liability” and “expenses” shall include, without limitation, attorneys ‘ fees, costs, judgments, amounts paid in settlement, fines, penalties and other liabilities.
(b) No indemnification shall be provided hereunder to a Trustee or officer:
(i) against any liability to the Trust or a Series thereof or the Shareholders by reason of a final adjudication by a court or other body before which a proceeding was brought that he engaged in willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his office:
(ii) with respect to any matter as to which he shall have been finally adjudicated not to have acted in good faith in the reasonable belief that his action was in the best interest of the Trust or a Series thereof:
(iii) in the event of a settlement or other disposition not involving a final adjudication as provided in paragraph (b)(i) or (b) (ii) resulting in a payment by a Trustee or officer, unless there has been a determination that such Trustee or officer did not engage in willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his office:
(A) by the court or other body approving the settlement or other disposition; or
(B) based upon a review of readily available facts (as opposed to a full trial-type inquiry) by (x) vote of a majority of the Non-interested Trustees acting on the matter (provided that a majority of the Non-interested Trustees then in office act on the matter) or (y) written opinion of independent legal counsel.
(c) The rights of indemnification herein provided may be insured against by policies maintained by the Trust, shall be severable, shall not affect any other rights to which any Trustee or officer may now or hereafter be entitled, shall continue as to a person who has ceased to be such Trustee or officer and shall inure to the benefit of the heirs, executors, administrators and assigns of such a person. Nothing contained herein shall affect any rights to indemnification to which personnel of the Trust other than Trustees and officers may be entitled by contract or otherwise under law.
(d) Expenses of preparation and presentation of a defense to any claim, actions suit or proceeding of the character described in paragraph (a) of this Section 4.3 may be advanced by the Trust or a Series thereof prior to final disposition thereof upon receipt of an undertaking by or on behalf of the recipient to repay such amount if it is ultimately determined that he is not entitled to indemnification under this Section 4.3, provided that either:
(i) such undertaking is secured by a surety bond or some other appropriate security provided by the recipient, or the Trust or Series thereof shall be insured against losses arising out of any such advances; or
(ii) a majority of the Non-interested Trustees acting on the matter (provided that a majority of the Non-interested Trustees act on the matter) or an independent legal counsel in a written opinion shall determine, based upon a review of readily available facts (as opposed to a full trial-type inquiry), that there is reason to believe that the recipient ultimately will be found entitled to indemnification.
As used in this Section 4.3, a “Non-interested Trustee” is one who is not (i) an “Interested Person” of the Trust (including anyone who has been exempted from being an “Interested Person” by any rule, regulation or order of the Commission), or (ii) involved in the claim, action, suit or proceeding.
In addition, each Trustee has entered into a written agreement with the Trust pursuant to which the Trust is contractually obligated to indemnify the Trustees to the fullest extent permitted by law and by the Declaration of Trust and Bylaws of the Trust.
Insofar as indemnification for liability arising under the Securities Act of 1933 may be permitted to trustees, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a trustee, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such trustee, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
ITEM 16. EXHIBITS
1. Declaration of Trust
(a) Fifth Amended and Restated Establishment and Designation of Series of Shares of Beneficial Interest, Par Value $.01 Per Share dated October 26, 1992 — Previously filed as Exhibit 1(b) to Post-Effective Amendment No. 16*
(b) Establishment and Designation of Additional Series of Shares of Beneficial Interest, Par Value $.01 Per Share — Previously filed as Exhibit 1(b) to Post-Effective Amendment No. 11*
(c) Form of Establishment and Designation of Additional Series of shares of Beneficial Interest, Par Value $.01 Per Share — Previously filed as Exhibit 1(b) to Post-Effective Amendment No. 23*
(d) Form of Establishment and Designation of Additional Series of Shares of Beneficial Interest, Par Value $.01 Per Share — Previously filed as Exhibit 1(e) to Post-Effective Amendment No. 28*
2. By-Laws
3. Instruments Defining Rights of Security Holders
See the Declaration of Trust, as amended and supplemented from time to time and the Amended and Restated By-Laws dated June 4, 2015 (See above)
4. Agreement and Plan of Reorganization – Filed herewith
5. See the Amended and Restated Declaration of Trust (Exhibit 1 above) and the Amended and Restated By-Laws (Exhibit 2 above)
6. Investment Advisory Contracts
Subadvisory Agreements
7. Underwriting Contracts
(a) Amended and Restated Master Distribution Agreement between the MainStay Funds and NYLIFE Distributors Inc. dated August 1, 2014 — Previously filed as Exhibit (e)(1) to Post-Effective Amendment No. 126 on February 27, 2015*
8. Bonus or Profit Sharing Contracts – Inapplicable
9. Custodian Agreements
10. Rule 12b-1 Plan and 18f-3 Plans
12. Tax Opinion – Filed herewith
13. Other Material Contracts
Transfer Agency Agreements
b. Reserved.
c. Shareholder Service Plans
e. Expense Limitation Agreements and Fee Waivers
14. Other Opinions
15. Omitted Financial Statements – Inapplicable
17. Additional Exhibits – Inapplicable
* Incorporated by reference.
ITEM 17. UNDERTAKINGS.
(1) The undersigned registrant agrees that prior to any public reoffering of the securities registered through the use of a prospectus which is a part of this registration statement by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c) of the Securities Act [17 CFR 230.145c], the reoffering prospectus will contain the information called for by the applicable registration form for the reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form.
(2) The undersigned registrant agrees that every prospectus that is filed under paragraph (1) above will be filed as a part of an amendment to the registration statement and will not be used until the amendment is effective, and that, in determining any liability under the 1933 Act, each post-effective amendment shall be deemed to be a new registration statement for the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering of them.
(3) The undersigned registrant agrees to file in a Post-Effective Amendment to this Registration Statement a final tax opinion within a reasonably prompt time after receipt of such opinion.
SIGNATURES | |||||
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on behalf of the Registrant, in the City of Jersey City in the State of New Jersey, on the 17th day of May, 2021. | |||||
THE MAINSTAY FUNDS | |||||
By: /s/ Kirk C. Lehneis | |||||
Kirk C. Lehneis | |||||
President and Principal Executive Officer | |||||
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on May 17, 2021. | |||||
SIGNATURE | TITLE | ||||
/s/ Kirk C. Lehneis | President and Principal Executive Officer | ||||
Kirk C. Lehneis | |||||
/s/ Susan B. Kerley* Susan B. Kerley | Trustee and Chairman of the Board | ||||
|
| ||||
/s/ David H. Chow* David H. Chow | Trustee | ||||
|
| ||||
/s/ Yie-Hsin Hung* | Trustee | ||||
Yie-Hsin Hung | |||||
|
| ||||
/s/ Alan R. Latshaw* Alan R. Latshaw | Trustee | ||||
|
| ||||
/s/ Richard H. Nolan, Jr.* Richard H. Nolan, Jr. | Trustee | ||||
|
| ||||
/s/ Jacques P. Perold* Jacques P. Perold | Trustee | ||||
|
| ||||
/s/ Richard S. Trutanic* Richard S. Trutanic | Trustee | ||||
|
| ||||
/s/ Jack R. Benintende Jack R. Benintende | Treasurer and Principal Financial and Accounting Officer | ||||
By* | /s/ J. Kevin Gao | Secretary | |||
J. Kevin Gao | |||||
As Attorney-in-Fact | |||||
* Pursuant to Powers of Attorney filed herewith. |
EXHIBIT INDEX
4 Agreement and Plan of Reorganization
12 Tax Opinion of Dechert LLP