Exhibit 10.13


 


ALMOST
FAMILY, INC


 


AMENDED
AND RESTATED


NON-EMPLOYEE
DIRECTORS DEFERRED 

COMPENSATION PLAN


 


ARTICLE
1


 


Purposes


 


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


 


On February 22, 2010 (the “Termination Date”), pursuant
to Section 9.2 of the Plan, the Board irrevocably resolved to terminate
the Plan pursuant to the rules set forth in Treasury Regulation
1.409A-3(j)(4)(ix)(C).  Concurrently with
the termination of the Plan, the Plan is being amended and restated to reflect
all previous amendments, and to document the termination.  The deferral elections of Participants in the
Plan will continue to be given effect through the 2010 calendar year, and the
date for distribution of all Participants’ accounts in liquidation of the Plan
will be February 23, 2011, 12 months and one day after the Board
irrevocably terminates the Plan.


 


ARTICLE
2


 


Eligibility
and Participation


 


2.1           Eligibility. Any director of the Company who is not an employee of
the Company or a subsidiary of the Company (“Director”) is eligible to
participant 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. A
Participant shall remain a Participant until such time as the Participant has
received all payments to which the Participant in entitled under the terms of
the Plan.  No deferral election may be
made after the Termination Date, and no fees earned after 2010 may be deferred
under the Plan.


 


ARTICLE
3


 


Shares
Subject to Plan


 


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


 

















 


Plan may consist, in whole or in part, of authorized and unissued
shares 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 of
the Company affecting the Common Stock, the Committee shall substitute or
adjust the total number and class of stock or securities which may be issued
under the Plan and which are credited to a Participant’s Deferred Stock Account
as it determines to be appropriate and equitable to prevent dilution or
enlargement of the rights of Participants.


 


ARTICLE 4


 


Administration


 


4.1           The Committee. The Plan shall be administered by the Compensation
Committee of the Board of Directors of the Company (“Board”), or by any other
committee (“Committee”) appointed by the Board consisting of two or more
non-employee directors of the Company.


 


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


 


4.3           Section 16 Compliance. It is the intention of the Company that the Plan and
the administration of the Plan comply in all respects with Section 16(b) of
the Exchange Act and the rules and regulations promulgated thereunder. If
any Plan provision, or any aspect of the administration of the Plan, is found
not to be in compliance with Section 16(b) of the Exchange Act, the
provision or administration shall be deemed null and void, and in all events
the Plan shall be construed in favor of its meeting the requirements of Rule 16b-3
promulgated under the Exchange Act.


 


ARTICLE
5


 


Deferral
Election


 


5.1           Making of Election.


 


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


 


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b.             At the time of making any deferral election or change
in an existing election, the Participant shall further elect, in accordance
with 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 (“Share
Election”), 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 deemed
invested with interest (“Cash Election”); provided, however, that in no event
shall a Share Election be effective until six months after the effective date
of the Share Election, with the result that such six-month period, the
Participant 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 the
Participant’s Participant Account as of the date such compensation would
otherwise be payable to the Participant. A Participant Account shall include a
Deferred Cash Account, if a Cash Election has been made, and a Deferred Stock
Account, if a Share Election has been made.


 


5.3.          Deferred Cash Account. Each Deferred Cash Account shall be credited with the

amounts deferred on behalf of a Participant plus annual interest thereon as
provided in Section 7.1.


 


5.4.          Deferred Stock Account. Each Deferred Stock Account shall be credited with
110% of the amounts deferred to the Deferred Stock Account on behalf of a
Participant. Deferred Stock Accounts shall also be credited as of the payment
date for dividends on Common Stock in an amount equal to the dividends
attributable to the number of shares of Common Stock credited to the
Participant’s Deferred Stock Account as of the record date set by the Board for
the payment of dividends (the amounts referred to in the first two sentences of
this Section 5.4 are hereinafter referred to as the “Cash Credits”). As of
the last day of March, June, September and December of each year,
there shall be credited to a Participant’s Deferred Stock Account a number of
shares of Common Stock equal to that whole number obtained by dividing (i) the
amount of Cash Credits in the Deferred Stock Account as of such date, by (ii) the
fair 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 number
of shares of Common Stock credited to the Deferred Stock Account shall be
treated as a Cash Credit and held in the Deferred Stock Account until the end
of the following quarterly crediting date.


 


ARTICLE
6


 


Fair
Market Value


 


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


 


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ARTICLE 7


 


Interest


 


7.1           Interest on Deferred Cash
Amount.
Interest will be credited to each Deferred Cash Account at the announced prime
rate 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 interest
shall be compounded annually and treated as earned from the date deferred
compensation is credited to the Deferred Cash Account to the date of
withdrawal.


 


ARTICLE 8


 


Payment of Deferred Amounts


 


8.1           Limitation on Payment of
Deferred Amounts. No
payments 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 Participant
Account shall be made upon the earlier to occur of (i) 60 days following
the date the Participant has a Separation from Service, (ii) the date
selected by the Participant at the time of making a Cash Election or Share
Election (which date may be different for the Cash Election and the Share
Election), (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 a
Deferred Cash Account made in cash, and payment from a Deferred Stock Account
made in Common Stock (except for any Cash Credits remaining in the Participant’s
Deferred Stock Account, which shall be paid in cash).  The Participant shall not make any
contributions after a distribution under (ii), (iii), or (iv).


 


b.  For purposes of the Plan, a Change in Control
shall occur upon (i) the acquisition by any person after the date hereof
of beneficial ownership of 50% or more of the voting power of the Company’s
outside outstanding voting stock, (ii) five or more of the current members
of the Board ceasing to be members of the Board unless any replacement director
was elected by a vote of either at least 75% of the remaining directors, or of
at least 75% of the shares entitled to vote on such replacement, or (iii) approval
by the stock holders of the Company of (a) a merger or consolidation of
the Company with another corporation if the stockholders of the Company
immediately before such vote will not, as a result of such merger or
consolidation, own more than 50% of the voting stock of the corporation
resulting from such merger or consolidation, or (b) a complete liquidation
of the Company or sale of all, or substantially all, of the assets of the
Company.  Notwithstanding the foregoing,
a Change in Control shall not occur solely because 50% or more of the voting
stock of the Company is acquired by (i) a trust which is part of an
employee benefit plan maintained by the Company or its subsidiaries, or (ii) a
corporation which, immediately following such acquisition , is owned directly
or indirectly by the stockholders of the Company in the same proportion as
their ownership of stock in the Company immediately prior to such acquisition.


 


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


 


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


 


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


 


ARTICLE
9


 


Miscellaneous


 


9.1           Assignability. No right to receive payments hereunder shall be
transferable or assignable by a Participant except by will or by the laws of
descent and distribution.


 


9.2           Amendment or Termination. The Plan may be amended, modified or terminated by
the 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 16
of Exchange Act and the rules promulgated thereunder, any national
securities exchange or system on which the Common Stock is then listed or
reported or a regulatory body having jurisdiction with respect hereto), no such
amendment, modification or termination may (i) materially increase the benefits
accruing to Participants under Plan, (ii) materially increase the total
number of shares of Common Stock which may be issued under the Plan, except as
provided in Section 3.2 or (iii) materially modify the eligibility
requirements for participant in the Plan. No amendment, modification or
termination shall, without the consent of a Participant, adversely affect such
Participant’s existing rights under the Plan. 
Further, except to the extent permitted under Section 409A
following a Change in Control, no amendment shall accelerate the timing of
payment from the Deferred Cash Accounts and Deferred Stock Accounts.


 


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


 


9.4           Participant’s Rights
Unsecured. The
right of any Participant to receive payment of deferred amounts under the
provisions of the Plan shall be an unsecured claim against the general assets
of the Company. The maintenance of individual Participant Accounts is for
bookkeeping purposes only. The Company is not obligated to acquire or set aside
any particular assets for the discharge of its obligations, nor shall any
Participant have any property rights in any particular assets held by the
Company, 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 Plan
shall be governed by, and construed in accordance with, the laws of the State
of Delaware without regard to its conflict of laws rules.


 


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


 


As
amended and restated on


February 22,
2010


 


 


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