sc13da106290051_01242011.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. 1)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)

January 24, 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
 
1,804,639
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
1,804,639
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
1,804,639
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
6.0%
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
 
1,804,639
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
1,804,639
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
1,804,639
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
6.0%
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
 
601,059
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
601,059
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
601,059
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
2.0%
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
 
413,901
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
413,901
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
413,901
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
 
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
 
212,347
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
212,347
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
212,347
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
Less than 1%
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. 1 to the Schedule 13D filed by the undersigned (“Amendment No. 1”).  This Amendment No. 1 amends the Schedule 13D as specifically set forth herein.
 
Item 3.
Source and Amount of Funds or Other Consideration.
 
Item 3 is amended and restated to read as follows:
 
The aggregate purchase price of the 1,804,639 Shares beneficially owned by WILLC is approximately $$20,690,606.  The Shares beneficially owned by WILLC consist of 500 Shares that were acquired with WILLC’s working capital, 601,059 Shares that were acquired with WIHP’s working capital, 576,832 Shares that were acquired with WIAP’a working capital, 413,901 Shares that were acquired with WITRP’s working capital and 212,347 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 January 24, 2011, WIHP, WIAP, WITRP and WITRL beneficially owned 601,059, 576,832, 413,901 and 212,347 Shares, respectively, constituting approximately 2.0%, 1.9%, 1.4% and less than 1%, 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 1,804,139 Shares owned in the aggregate by WIHP, WIAP, WITRP and WITRL, constituting approximately 6.0% 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 1,804,639 Shares beneficially owned by WILLC, constituting approximately 6.0% of the Shares outstanding.
 
As of the close of business on January 24, 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.
 
Item 5(c) is amended to add the following:
 
(c)           Schedule A annexed hereto lists all transactions in securities of the Issuer since the filing of the Schedule 13D by the Reporting Persons.  All of such transactions were effected in the open market.
 
 
12
 
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: January 24, 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

 
13
 
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

 
14
 
CUSIP NO. 50208A102
 
SCHEDULE A
 
Transactions in the Shares Since the Filing of the Schedule 13D
 
Date of
Purchase/Sale
Shares of Common Stock
Purchased/(Sold)
Price Per
Share ($)

WESTERN INVESTMENT HEDGED PARTNERS L.P.

12/17/10
13,662
  
12.2845
12/17/10
35,359
  
12.3072
12/20/10
4,000
  
12.3579
12/22/10
8,300
  
12.2822
12/23/10
400
  
12.2785
12/23/10
1,100
  
12.2957
12/27/10
400
  
12.3350
12/28/10
1,500
  
12.3287
01/10/11
3,400
  
12.3179
01/11/11
700
  
12.3185
01/12/11
15,236
  
12.3634
01/13/11
551
  
12.4315
01/14/11
900
  
12.4564
01/14/11
7,756
  
12.4479
01/18/11
100
  
12.4685
01/18/11
17,438
  
12.4869
01/19/11
3,100
  
12.4737
01/19/11
1,900
  
12.4719
01/20/11
4,900
  
12.4596
01/20/11
4,340
  
12.4593
01/21/11
5,382
  
12.5717
01/21/11
6,102
  
12.5672
01/24/11
5,018
  
12.6076
01/24/11
4,872
  
12.5829
 
 
 
 
CUSIP NO. 50208A102
 
WESTERN INVESTMENT ACTIVISM PARTNERS LLC

12/17/10
7,000
  
12.2841
12/20/10
3,980
  
12.3579
12/22/10
8,215
  
12.2822
12/23/10
482
  
12.2785
12/23/10
1,082
  
12.2958
12/27/10
500
  
12.3325
12/28/10
1,595
  
12.3285
01/10/11
3,300
  
12.3179
01/11/11
800
  
12.3185
01/12/11
15,100
  
12.3634
01/14/11
1,000
  
12.4564
01/14/11
7,800
  
12.4479
01/18/11
200
  
12.4685
01/18/11
17,200
  
12.4869
01/19/11
3,200
  
12.4737
01/19/11
1,900
  
12.4719
01/20/11
8,000
  
12.4587

 
WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P.

12/31/10
(2,000)
  
12.4413
 

WESTERN INVESTMENT TOTAL RETURN FUND LTD.

01/10/11
3,300
  
12.3179
01/11/11
800
  
12.3185
01/12/11
15,100
  
12.3634
01/14/11
900
  
12.4564
01/14/11
7,900
  
12.4479
01/18/11
200
  
12.4685
01/18/11
17,200
  
12.4869
01/19/11
3,200
  
12.4737
01/19/11
1,900
  
12.4719
01/20/11
5,000
  
12.4596
01/20/11
4,300
  
12.4593
01/21/11
5,300
  
12.5717
01/21/11
6,200
  
12.5672
01/24/11
5,000
  
12.6076
01/24/11
4,800
  
12.5829