sc13da206290051_02082011.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D
(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)

(Amendment No. 2)1

LMP Capital and Income Fund Inc.
(Name of Issuer)

Common Stock, $0.001 Par Value
(Title of Class of Securities)

50208A102
(CUSIP Number)
 
STEVEN WOLOSKY, ESQ.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

February 8, 2011
(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.

Note:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See § 240.13d-7 for other parties to whom copies are to be sent.


_______________
1              The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 
 
 
 
CUSIP NO. 50208A102
 
1
NAME OF REPORTING PERSON
 
WESTERN INVESTMENT LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO, WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
2,250,652
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
2,250,652
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
2,250,652
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
7.5%
14
TYPE OF REPORTING PERSON
 
OO

 
2
 
CUSIP NO. 50208A102
 
1
NAME OF REPORTING PERSON
 
ARTHUR D. LIPSON
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
2,250,652
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
2,250,652
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
2,250,652
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
7.5%
14
TYPE OF REPORTING PERSON
 
IN

 
3
 
CUSIP NO. 50208A102
 
1
NAME OF REPORTING PERSON
 
WESTERN INVESTMENT HEDGED PARTNERS L.P.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
760,642
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
760,642
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
760,642
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
2.5%
14
TYPE OF REPORTING PERSON
 
PN

 
4
 
CUSIP NO. 50208A102
 
1
NAME OF REPORTING PERSON
 
WESTERN INVESTMENT ACTIVISM PARTNERS LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
576,832
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
576,832
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
576,832
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
1.9%
14
TYPE OF REPORTING PERSON
 
OO

 
5
 
CUSIP NO. 50208A102
 
1
NAME OF REPORTING PERSON
 
WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
541,031
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
541,031
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
541,031
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
1.8%
14
TYPE OF REPORTING PERSON
 
PN

 
6
 
CUSIP NO. 50208A102
 
1
NAME OF REPORTING PERSON
 
WESTERN INVESTMENT TOTAL RETURN FUND LTD.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
CAYMAN ISLANDS
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
371,647
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
371,647
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
371,647
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
1.2%
14
TYPE OF REPORTING PERSON
 
CO

 
7
 
CUSIP NO. 50208A102
 
1
NAME OF REPORTING PERSON
 
BENCHMARK PLUS INSTITUTIONAL PARTNERS, L.L.C.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
418,393
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
418,393
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
418,393
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
1.4%
14
TYPE OF REPORTING PERSON
 
OO

 
8
 
CUSIP NO. 50208A102
 
1
NAME OF REPORTING PERSON
 
BENCHMARK PLUS MANAGEMENT, L.L.C.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
418,393
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
418,393
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
418,393
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
1.4%
14
TYPE OF REPORTING PERSON
 
OO

 
9
 
CUSIP NO. 50208A102
 
1
NAME OF REPORTING PERSON
 
ROBERT FERGUSON
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
418,393
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
418,393
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
418,393
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
1.4%
14
TYPE OF REPORTING PERSON
 
IN

 
10
 
CUSIP NO. 50208A102
 
1
NAME OF REPORTING PERSON
 
SCOTT FRANZBLAU
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
418,393
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
418,393
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
418,393
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
1.4%
14
TYPE OF REPORTING PERSON
 
IN

 
11
 
CUSIP NO. 50208A102
 
The following constitutes Amendment No. 2 to the Schedule 13D filed by the undersigned (“Amendment No. 2”).  This Amendment No. 2 amends the Schedule 13D as specifically set forth herein.
 
Item 3.
Source and Amount of Funds or Other Consideration.
 
Item 3 is hereby amended and restated to read as follows:
 
The aggregate purchase price of the 2,250,652 Shares beneficially owned by WILLC is approximately $26,397,194.  The Shares beneficially owned by WILLC consist of 500 Shares that were acquired with WILLC’s working capital, 760,642 Shares that were acquired with WIHP’s working capital, 576,832 Shares that were acquired with WIAP’s working capital, 541,031 Shares that were acquired with WITRP’s working capital and 371,647 Shares that were acquired with WITRL’s working capital.
 
The aggregate purchase price of the 418,393 Shares beneficially owned by BPM is approximately $4,368,007.  The Shares beneficially owned by BPM consist of 418,393 Shares that were acquired with BPIP’s working capital.
 
Item 5.
Interest in Securities of the Issuer.
 
Item 5(a) is amended and restated to read as follows:
 
(a)           The aggregate percentage of Shares reported owned by each person named herein is based upon 29,964,106 Shares outstanding, which is the total number of Shares outstanding as of June 30, 2010, as reported in the Issuer’s Semi-Annual Report to Stockholders on Form N-CSR, filed with the Securities and Exchange Commission on August 31, 2010.
 
As of the close of business on February 10, 2011, WIHP, WIAP, WITRP and WITRL beneficially owned 760,642, 576,832, 541,031 and 371,647 Shares, respectively, constituting approximately 2.5%, 1.9%, 1.8% and 1.2%, respectively, of the Shares outstanding.
 
As the general partner of each of WIHP and WITRP, the managing member of WIAP and the investment manager of WITRL, WILLC may be deemed to beneficially own the 2,250,152 Shares owned in the aggregate by WIHP, WIAP, WITRP and WITRL, constituting approximately 7.5% of the Shares outstanding, in addition to the 500 Shares it holds directly.
 
As the managing member of WILLC, Mr. Lipson may be deemed to beneficially own the 2,250,652 Shares beneficially owned by WILLC, constituting approximately 7.5% of the Shares outstanding.
 
As of the close of business on February 10, 2011, BPIP beneficially owned 418,393 Shares, constituting approximately 1.4% of the Shares outstanding.  As the managing member of BPIP, BPM may be deemed to beneficially own the 418,393 Shares owned by BPIP, constituting approximately 1.4% of the Shares outstanding.  As managing members of BPM, each of Messrs. Franzblau and Ferguson may be deemed to beneficially own the 418,393 Shares beneficially owned by BPM, constituting approximately 1.4% of the Shares outstanding.
 
 
12
 
CUSIP NO. 50208A102
 
Item 5(c) is amended to add the following:
 
(c)           Schedule B annexed hereto lists all transactions in securities of the Issuer since the filing of Amendment No. 1 to the Schedule 13D by the Reporting Persons.  All of such transactions were effected in the open market.
 
 
13
 
CUSIP NO. 50208A102
 
SIGNATURES
 
After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: February 10, 2011
WESTERN INVESTMENT LLC
     
 
By:
/s/ Arthur D. Lipson
   
Name:
Arthur D. Lipson
   
Title:
Managing Member


 
WESTERN INVESTMENT HEDGED PARTNERS L.P.
     
 
By:
Western Investment LLC
   
General Partner
     
 
By:
/s/ Arthur D. Lipson
   
Name:
Arthur D. Lipson
   
Title:
Managing Member


 
WESTERN INVESTMENT ACTIVISM PARTNERS LLC
     
 
By:
Western Investment LLC
   
Managing Member
     
 
By:
/s/ Arthur D. Lipson
   
Name:
Arthur D. Lipson
   
Title:
Managing Member


 
WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P.
     
 
By:
Western Investment LLC
   
General Partner
     
 
By:
/s/ Arthur D. Lipson
   
Name:
Arthur D. Lipson
   
Title:
Managing Member


 
WESTERN INVESTMENT TOTAL RETURN FUND LTD.
     
 
By:
Western Investment LLC
   
Investment Manager
     
 
By:
/s/ Arthur D. Lipson
   
Name:
Arthur D. Lipson
   
Title:
Managing Member


 
/s/ Arthur D. Lipson
 
ARTHUR D. LIPSON


 
14
 
CUSIP NO. 50208A102
 
 
BENCHMARK PLUS INSTITUTIONAL PARTNERS, L.L.C.
     
 
By:
Benchmark Plus Management, L.L.C.
   
Managing Member
     
 
By:
/s/ Robert Ferguson
   
Name:
Robert Ferguson
   
Title:
Managing Member
     
 
By:
/s/ Scott Franzblau
   
Name:
Scott Franzblau
   
Title:
Managing Member


 
BENCHMARK PLUS MANAGEMENT, L.L.C.
     
 
By:
/s/ Robert Ferguson
   
Name:
Robert Ferguson
   
Title:
Managing Member
     
 
By:
/s/ Scott Franzblau
   
Name:
Scott Franzblau
   
Title:
Managing Member

 
/s/ Robert Ferguson
 
ROBERT FERGUSON

 
/s/ Scott Franzblau
 
SCOTT FRANZBLAU
 
 
 
15
 
CUSIP NO. 50208A102
 
SCHEDULE B
 
Transactions in the Shares Since the Filing of Amendment No. 1 to the Schedule 13D
 
Date of
Purchase
Shares of Common Stock
Purchased
Price Per
Share ($)
 
WESTERN INVESTMENT HEDGED PARTNERS L.P.
 
01/25/11
203
  
12.5785
01/25/11
2,589
  
12.6021
01/26/11
2,256
  
12.6337
01/26/11
27,035
  
12.6510
01/27/11
800
  
12.6385
01/27/11
6,500
  
12.6572
01/28/11
1,800
  
12.6245
01/28/11
5,700
  
12.5999
01/31/11
5,200
  
12.5818
02/01/11
12,400
  
12.6828
02/02/11
6,300
  
12.6959
02/03/11
8,500
  
12.6876
02/04/11
6,000
  
12.7958
02/07/11
2,300
  
12.9012
02/07/11
2,600
  
12.8975
02/08/11
9,500
  
12.9294
02/08/11
14,000
  
12.9157
02/09/11
12,500
  
12.9202
02/09/11
14,100
  
12.9071
02/10/11
11,000
  
12.9541
02/10/11
8,300
  
12.9432
       
WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P.
 
01/27/11
694
  
12.6385
01/27/11
6,692
  
12.6571
01/28/11
1,700
  
12.6245
 
 
 
 
 
01/28/11
5,700
  
12.5999
01/31/11
5,060
  
12.5818
02/01/11
12,502
  
12.6828
02/02/11
6,161
  
12.6959
02/03/11
8,541
  
12.6876
02/04/11
5,977
  
12.7958
02/07/11
2,249
  
12.9012
02/07/11
2,537
  
12.8976
02/08/11
9,548
  
12.9294
02/08/11
14,026
  
12.9157
02/09/11
12,423
  
12.9202
02/09/11
14,065
  
12.9071
02/10/11
11,014
  
12.9541
02/10/11
8,241
  
12.9432
       
WESTERN INVESTMENT TOTAL RETURN FUND LTD.
 
01/25/11
2,600
  
12.6021
01/26/11
2,300
  
12.6337
01/26/11
26,900
  
12.6510
01/27/11
800
  
12.6385
01/27/11
6,500
  
12.6572
01/28/11
1,700
  
12.6245
01/28/11
5,800
  
12.5999
01/31/11
5,200
  
12.5818
02/01/11
12,400
  
12.6828
02/02/11
6,300
  
12.6959
02/03/11
8,500
  
12.6876
02/04/11
6,000
  
12.7958
02/07/11
2,400
  
12.9012
02/07/11
2,500
  
12.8976
02/08/11
9,500
  
12.9294
02/08/11
14,000
  
12.9157
 
 
 
 
 
02/09/11
12,500
  
12.9202
02/09/11
14,100
  
12.9071
02/10/11
11,000
  
12.9541
02/10/11
8,300
  
12.9432