**Exhibit 10.13**

 

**ALMOSTFAMILY, INC**

 

**AMENDEDAND RESTATED**

**NON-EMPLOYEEDIRECTORS DEFERRED COMPENSATION PLAN**

 

**ARTICLE1**

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**Purposes**

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1.1           **Purposes****.**  ThisNon-Employee Directors Deferred Compensation Plan (“Plan”) of Almost Family, Inc.(the “Company”), was adopted to encourage the Company’s non-employee directorsto invest in the future of the Company through ownership of an interest in theCompany, to provide an incentive to such directors to continue to serve theCompany and to provide flexibility to the Company in attracting and retainingdirectors.

 

On February 22, 2010 (the “Termination Date”), pursuantto Section 9.2 of the Plan, the Board irrevocably resolved to terminatethe Plan pursuant to the rules set forth in Treasury Regulation1.409A-3(j)(4)(ix)(C).  Concurrently withthe termination of the Plan, the Plan is being amended and restated to reflectall previous amendments, and to document the termination.  The deferral elections of Participants in thePlan will continue to be given effect through the 2010 calendar year, and thedate for distribution of all Participants’ accounts in liquidation of the Planwill be February 23, 2011, 12 months and one day after the Boardirrevocably terminates the Plan.

 

**ARTICLE2**

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**Eligibilityand Participation**

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2.1           **Eligibility****.** Any director of the Company who is not an employee ofthe Company or a subsidiary of the Company (“Director”) is eligible toparticipant in the Plan.

 

2.2           **Participation****.** A Director shall become a participant in the Plan (“Participant”)by filing an election form prescribed by the Committee (as hereinafter defined)(“Election Form”) in accordance with the provisions of Section 5.1a. AParticipant shall remain a Participant until such time as the Participant hasreceived all payments to which the Participant in entitled under the terms ofthe Plan.  No deferral election may bemade after the Termination Date, and no fees earned after 2010 may be deferredunder the Plan.

 

**ARTICLE3**

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**SharesSubject to Plan**

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3.1           **Number of Shares****.**  Subject toadjustment as provided in Section 3.2, the number of shares of the Company’scommon stock, par value $0.10 per share (“Common Stock”), reserved for issuanceunder the Plan is 200,000 shares. Any Common Stock issued under the 

 

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Plan may consist, in whole or in part, of authorized and unissuedshares or treasury shares.

 

3.2           **Adjustments****.** In the event of a merger, reorganization,consolidation, recapitalization, reclassification, split-up, spin-off,separation, liquidation, stock dividend, stock split, reverse stock split,share combination, share exchange or other change in the corporate structure ofthe Company affecting the Common Stock, the Committee shall substitute oradjust the total number and class of stock or securities which may be issuedunder the Plan and which are credited to a Participant’s Deferred Stock Accountas it determines to be appropriate and equitable to prevent dilution orenlargement of the rights of Participants.

 

**ARTICLE 4**

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**Administration**

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4.1           **The Committee****.** The Plan shall be administered by the CompensationCommittee of the Board of Directors of the Company (“Board”), or by any othercommittee (“Committee”) appointed by the Board consisting of two or morenon-employee directors of the Company.

 

4.2           **Authority of the Committee****.** The Committee shall have sole discretion to make alldeterminations which may be necessary or advisable for the administration ofthe Plan. To the extent permitted by law and Rule 16b-3 promulgated underthe Securities Exchange Act of 1934, as amended (“Exchange Act”), the Committeemay delegate its authority as identified hereunder. All determinations anddecisions made by the Committee pursuant to the provisions of the Plan, and allrelated orders or resolutions of the Board, shall be final, conclusive andbinding upon all persons, including the Company, Participants and their estatesand beneficiaries.

 

4.3           **Section 16 Compliance****.** It is the intention of the Company that the Plan andthe administration of the Plan comply in all respects with Section 16(b) ofthe Exchange Act and the rules and regulations promulgated thereunder. Ifany Plan provision, or any aspect of the administration of the Plan, is foundnot to be in compliance with Section 16(b) of the Exchange Act, theprovision or administration shall be deemed null and void, and in all eventsthe Plan shall be construed in favor of its meeting the requirements of Rule 16b-3promulgated under the Exchange Act.

 

**ARTICLE5**

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**DeferralElection**

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5.1           **Making of Election****.**

 

a.             Each Director may elect in writing, in the manner andon the Election Form, to defer payment of all, but not less than all, of thefees which would otherwise be paid to such Director by the Company for serviceson the Board and committees thereof. An election shall be effective withrespect to amounts which would otherwise be paid to the Participant beginningon or after the first day of the calendar year following the making of theelection. Once an election has been made, it shall remain in effect withrespect to all future amounts which would otherwise be paid to the Participantas a Director until the beginning of the calendar year following the filing ofa new election.

 

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b.             At the time of making any deferral election or changein an existing election, the Participant shall further elect, in accordancewith procedures adopted by the Committee, (i) to have either 100% or 50%of the amount of such deferred fees be deemed invested in Common Stock (“ShareElection”), or (ii) to have either 100%, if no Share Election is chosen,or 50%, if a 50% Share Election is chosen, of such deferred fees deemedinvested with interest (“Cash Election”); provided, however, that in no eventshall a Share Election be effective until six months after the effective dateof the Share Election, with the result that such six-month period, theParticipant shall be deemed to have made a Cash Election.

 

5.2           **Participant Account****.** An account shall be established for each Participant(“Participant Account”). Deferred compensation will be credited to theParticipant’s Participant Account as of the date such compensation wouldotherwise be payable to the Participant. A Participant Account shall include aDeferred Cash Account, if a Cash Election has been made, and a Deferred StockAccount, if a Share Election has been made.

 

5.3.          **Deferred Cash Account****.** Each Deferred Cash Account shall be credited with theamounts deferred on behalf of a Participant plus annual interest thereon asprovided in Section 7.1.

 

5.4.          **Deferred Stock Account****.** Each Deferred Stock Account shall be credited with110% of the amounts deferred to the Deferred Stock Account on behalf of aParticipant. Deferred Stock Accounts shall also be credited as of the paymentdate for dividends on Common Stock in an amount equal to the dividendsattributable to the number of shares of Common Stock credited to theParticipant’s Deferred Stock Account as of the record date set by the Board forthe payment of dividends (the amounts referred to in the first two sentences ofthis Section 5.4 are hereinafter referred to as the “Cash Credits”). As ofthe last day of March, June, September and December of each year,there shall be credited to a Participant’s Deferred Stock Account a number ofshares of Common Stock equal to that whole number obtained by dividing (i) theamount of Cash Credits in the Deferred Stock Account as of such date, by (ii) thefair market value of the Common Stock (determined as provided in Section 6.1)on such date. Any amount of the Deferred Stock Account in excess of the numberof shares of Common Stock credited to the Deferred Stock Account shall betreated as a Cash Credit and held in the Deferred Stock Account until the endof the following quarterly crediting date.

 

**ARTICLE6**

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**FairMarket Value**

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6.1           **Fair Market Value**. For purposes of this Plan, the fair market value of the Common Stock onany date shall be (i) if the Common Stock is listed on a national orregional exchange, or on The NASDAQ Stock Exchange or a comparable market, theclosing price of the Common Stock on such date, or (ii) if (i) abovedoes not apply, the value determined in good faith by the Committee byreasonable application of a reasonable valuation method, considering any andall information the Committee determines relevant, consistent with InternalRevenue Code (“Code”) Section 409A and Treasury Regulations thereunder.

 

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**ARTICLE 7**

 

**Interest**

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7.1           **Interest on Deferred CashAmount****.**Interest will be credited to each Deferred Cash Account at the announced primerate of JPMorgan Chase Bank, N.A., as the same shall exist from time to time,changing with each change in such announced prime rate. This assumed interestshall be compounded annually and treated as earned from the date deferredcompensation is credited to the Deferred Cash Account to the date ofwithdrawal.

 

**ARTICLE 8**

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**Payment of Deferred Amounts**

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8.1           **Limitation on Payment ofDeferred Amounts****.** Nopayments may be made from any Participant Account except as provided in this Article 8.

 

8.2           **Time for Payment of Deferred Amounts**.

 

a.  Payment of the amount in a ParticipantAccount shall be made upon the earlier to occur of (i) 60 days followingthe date the Participant has a Separation from Service, (ii) the dateselected by the Participant at the time of making a Cash Election or ShareElection (which date may be different for the Cash Election and the ShareElection), (iii) 60 days following a Change in Control (as defined in Section 8.2b),or (iv) February 23, 2011. Payment shall be made in the form of a lump sum, with payment from aDeferred Cash Account made in cash, and payment from a Deferred Stock Accountmade in Common Stock (except for any Cash Credits remaining in the Participant’sDeferred Stock Account, which shall be paid in cash).  The Participant shall not make anycontributions after a distribution under (ii), (iii), or (iv).

 

b.  For purposes of the Plan, a Change in Controlshall occur upon (i) the acquisition by any person after the date hereofof beneficial ownership of 50% or more of the voting power of the Company’soutside outstanding voting stock, (ii) five or more of the current membersof the Board ceasing to be members of the Board unless any replacement directorwas elected by a vote of either at least 75% of the remaining directors, or ofat least 75% of the shares entitled to vote on such replacement, or (iii) approvalby the stock holders of the Company of (a) a merger or consolidation ofthe Company with another corporation if the stockholders of the Companyimmediately before such vote will not, as a result of such merger orconsolidation, own more than 50% of the voting stock of the corporationresulting from such merger or consolidation, or (b) a complete liquidationof the Company or sale of all, or substantially all, of the assets of theCompany.  Notwithstanding the foregoing,a Change in Control shall not occur solely because 50% or more of the votingstock of the Company is acquired by (i) a trust which is part of anemployee benefit plan maintained by the Company or its subsidiaries, or (ii) acorporation which, immediately following such acquisition , is owned directlyor indirectly by the stockholders of the Company in the same proportion astheir ownership of stock in the Company immediately prior to such acquisition.

 

Notwithstandingthe foregoing, no payment shall be made on account of a Change in

 

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Control unless theChange in Control is a “Change in Ownership,” “Change in Effective Control” or “Changein Asset Control” as each is defined in the final Treasury Regulations under Section 409Aof the Code.

 

c.  For purposes of the Plan, “Separation fromService” shall mean the date the Participant’s term as a Director expires, theDirector resigns, or the Director is removed, provided that the Company andDirector in good faith believe at that time that the Director’s status will notbe renewed and that no other service relationship (as an employee orindependent contractor) will continue or be begun. If the parties anticipatethat some service relationship will continue after a Director’s term expiresand is not renewed, in all events the “Separation from Service” is deemed tooccur 12 months after the date on which a Director Participant ceases to serveas a member of the Board of Directors of the Company or a subsidiary, as longas the Director does not actually perform services for the Company or asubsidiary (as a director, employee or independent contractor) during such 12month period, as provided under Treasury Regulation §1.409A-1(h)(2)(ii).

 

**ARTICLE9**

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**Miscellaneous**

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9.1           **Assignability****.** No right to receive payments hereunder shall betransferable or assignable by a Participant except by will or by the laws ofdescent and distribution.

 

9.2           **Amendment or Termination****.** The Plan may be amended, modified or terminated bythe Board at the any time or from time to time. Notwithstanding the foregoing,without the approval of stockholders of the Company (as may be required by Section 16of Exchange Act and the rules promulgated thereunder, any nationalsecurities exchange or system on which the Common Stock is then listed orreported or a regulatory body having jurisdiction with respect hereto), no suchamendment, modification or termination may (i) materially increase the benefitsaccruing to Participants under Plan, (ii) materially increase the totalnumber of shares of Common Stock which may be issued under the Plan, except asprovided in Section 3.2 or (iii) materially modify the eligibilityrequirements for participant in the Plan. No amendment, modification ortermination shall, without the consent of a Participant, adversely affect suchParticipant’s existing rights under the Plan. Further, except to the extent permitted under Section 409Afollowing a Change in Control, no amendment shall accelerate the timing ofpayment from the Deferred Cash Accounts and Deferred Stock Accounts.

 

9.3           **Future Director Terms****.** Nothing in the Plan, nor any action taken under thePlan, shall be construed as giving any Participant a right to continue as aDirector or require the Company to nominate or cause the nomination of aParticipant for a future term as a Director.

 

9.4           **Participant’s RightsUnsecured****.** Theright of any Participant to receive payment of deferred amounts under theprovisions of the Plan shall be an unsecured claim against the general assetsof the Company. The maintenance of individual Participant Accounts is forbookkeeping purposes only. The Company is not obligated to acquire or set asideany particular assets for the discharge of its obligations, nor shall anyParticipant have any property rights in any particular assets held by theCompany, whether or not held for the purpose of funding the 

 

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Company’s obligations hereunder.

 

9.5           **Governing Law****.** To the extent not preempted by Federal Law, this Planshall be governed by, and construed in accordance with, the laws of the Stateof Delaware without regard to its conflict of laws rules.

 

9.6           **409A Compliance.**               It is intended that amounts deferred under the Planshall be compliant with Section 409A of the Code.  In that respect the Company, by action of itsBoard, reserves the right to amend the Plan to the extent deemed necessary orappropriate to comply with the requirements of Section 409A.  The Plan shall be interpreted, construed, andadministered in accordance with this intent, provided that the Company does notpromise or warrant any tax treatment of compensation hereunder.  The Plan shall not be amended or terminatedin a manner that would accelerate or delay payment of deferred compensationexcept as permitted under Treasury Regulations under Code Section 409A.

 

Asamended and restated on

February 22,2010

 

 

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