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
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 |