EXHIBIT 10.4


 


FORM OF NOTICE OF GRANT OF PERFORMANCE-BASED
RESTRICTED STOCK UNITS


AND


FORM OF PERFORMANCE-BASED RESTRICTED
STOCK UNIT AGREEMENT FOR ASSOCIATES


 


 






West
Marine, Inc.


500 Westridge Drive


Watsonville,
CA  95076


 






 


FORM OF NOTICE OF GRANT OF PERFORMANCE-BASED
RESTRICTED STOCK UNITS


Grant Date: [DATE]


 


You have been granted the number of performance-based
restricted common stock units (the “PRSUs”) stated for you on the Morgan Stanley “Plan Documents” page
at https://benefits.morganstanley.com (the “Morgan Stanley Website”).  


 


The PRSUs entitle you to receive shares
of West Marine, Inc. (the “Company”) common stock at a future date, subject to the satisfaction of the terms and conditions
set forth herein and in the Amended and Restated West Marine, Inc. Omnibus Equity Incentive Plan, approved by the Company’s
Board of Directors (“Board”) on April 12, 2017 and approved by stockholders on June 1, 2017 (the “Plan”)
and the Performance-Based Restricted Stock Unit Agreement (the “Award Agreement”) attached hereto as Exhibit A.  Capitalized
terms not explicitly defined in this Grant Notice but defined in the Plan shall have the same meaning as in the Plan.


 


The Performance Goal and Actual Awards
of PRSUs will be determined based on the table below:


 


	Performance Level	 	FY [YEAR] (“FY [YEAR]”) Ending Return on 

Capital1 (“ROC”) Performance Goal 

(“Performance Goal”)	 	
        PRSU % Awarded Based on ROC


% Achieved 

(“Actual Award”)

	Threshold	 	[PERCENTAGE]%	 	50%
	Target	 	[PERCENTAGE]%	 	100%
	Maximum	 	[PERCENTAGE]%	 	150%


 


		1	Return on Capital is generally calculated as follows: Earnings
before interest and taxes divided by net working capital deployed in the operation of the business over that course of the year,
subject to any adjustments approved by the Compensation and Leadership Development
 Committee or the Board.



 


No PRSUs will be awarded if the FY [YEAR]
ending ROC Performance Goal is below [PERCENTAGE]%. No PRSUs in excess of 150% will be awarded under any circumstances. The number
of PRSUs awarded at performance levels between threshold and target and between target and maximum will be interpolated on a straight-line
basis.


 


Determination of Actual Award:  The
actual number of PRSUs to be awarded to you (the “Actual Award”) will be equal to a percentage of the Target Award
specified above, which shall be determined by the level of achievement by the Company of the ROC Performance Goal measured at the
end of FY [YEAR] (the “Performance Period”). The ROC goal shall be established at the end of the Company’s prior
FY or during the first 90 days of the Performance Period and the achievement of such ROC goal shall be subject to confirmation
by the Company’s Compensation and Leadership Development Committee (“Committee”) of the Board, after the financial
results for the Performance Period have been prepared by the Company, in the Committee’s sole discretion acting pursuant
to the terms of the Plan (“Determination Date”).


 


The PRSUs will vest as follows, assuming
continuous employment or as otherwise determined by the Board or the Committee, and subject to achievement of at least the Threshold
Performance Goal set forth in the table above:


 


	% of Total	 	Date Vest
	33%	 	1st Anniversary of Grant Date
	33%	 	2nd Anniversary of Grant Date
	34%	 	3rd Anniversary of Grant Date


 


The PRSUs granted hereunder hereinafter are referred to as the
“PRSU Grant.”


 






 


You and the
Company agree that the PRSU Grant is granted under and governed by the terms and conditions of the Plan and the Award
Agreement (collectively, the “Plan Documents”), all of which are incorporated herein and made a part of this
document. You acknowledge that a copy of the Plan Documents have been made available to you. You further acknowledge and
agree that the Award Agreement does not require your signature or the Company’s signature to be effective, and that
this Notice of the PRSU Grant issued to you (which notice may be accomplished through the posting thereof on a website for
the Plan Documents), shall be sufficient evidence of the issuance to, and acceptance by, you of the PRSU Grant reflected in
the Award Agreement, unless you expressly reject such Award Agreement in writing. 


 


Additionally, unless you expressly reject such Award Agreement in writing, you further acknowledge and agree that prior to the delivery of any shares or cash pursuant to the Plan, the Company shall have the power and the right to deduct or withhold, or require you to remit to the Company, through the sale of vested shares or otherwise, an amount sufficient to satisfy Federal, state, and local taxes (including your FICA obligation) required by law to be withheld, plus any fees assessed by Morgan Stanley, with respect to any PRSU Grant (collectively, “Applicable Tax and Fee Obligation”).  In this regard, you authorize the Company to withhold shares or facilitate the sale of vested shares having a value equal to the amount required to be withheld to satisfy your Applicable Tax and Fee Obligation. Notwithstanding the foregoing, if you are an “Executive Officer” as defined in Rule 3b-7 under the Securities Exchange Act of 1934, as amended, you, and not the Company, shall have the sole power and the right to direct the Company to withhold an amount of shares sufficient to satisfy your Applicable Tax and Fee Obligation. Executive Officers must make such election during an open trading window and such election, once made, shall be irrevocable.  


 







 


	Associate's Performance-Based Restricted Stock Units	RSU No.: On website
	(3 year - 33, 33, 34%)	ID:  Associate Number


 




     


     


    

 


Exhibit A


West Marine, Inc.


Amended and Restated Omnibus Equity Incentive
Plan effective April 12, 2017 and approved by Stockholders on June 1, 2017 


 


FORM OF PERFORMANCE-BASED RESTRICTED
STOCK UNIT AGREEMENT


 


1           GRANT OF PERFORMANCE-BASED RESTRICTED
STOCK UNITS. West Marine, Inc. (the "Company") hereby grants to the Associate referenced in the "Notice of Grant
of Performance-Based Restricted Stock Units" (the “Notice of Grant”) under the West Marine, Inc. Amended and Restated
Omnibus Equity Incentive Plan approved by the Company’s Board of Directors (“Board”) on April 12, 2017 and approved
by stockholders on June 1, 2017 (the "Plan"), as a separate incentive in connection with his or her employment and not
in lieu of any salary or other compensation for his or her services, on the terms and conditions set forth in this Performance-Based
Restricted Stock Unit Agreement (this “Agreement”) and the Plan, the performance-based restricted stock unit Awards
(the “PRSU Awards”) which entitle the Associate on a future date to receive the number of shares of common stock of
the Company (“Common Stock”) set forth for the Associate on the Morgan Stanley Website as referenced in the Notice
of Grant, subject to the achievement of the Performance Goals set forth in Section 2 below. Capitalized terms not explicitly defined
in this Agreement but defined in the Notice of Grant and/or the Plan shall have the same meanings in the Notice of Grant and/or
the Plan, as applicable.


 


2.         
RETURN ON CAPITAL PERFORMANCE REQUIREMENT.


 


(a) The “Performance
Period” for the PRSU Awards shall be the fifty-[__] (5_) week period for FY [YEAR] commencing on [DATE] and ending
on [DATE]. The PRSU Awards shall be subject to performance vesting requirements based upon the achievement of the Performance Goal
established under this Agreement and the Plan, subject to certification of the degree of achievement of such performance goal by
the Board or the Committee on the Determination Date.


 


(b) The measurement tool for determining
level of achievement shall be the Return on Capital (“ROC”)1 for the Performance Period. Achievement of
this measurement tool will be confirmed by the Committee, subject to all authority granted under the terms of the Plan, including
adjustments that may be made by the Committee to take into account any factors that the Committee has determined are not properly
reflected in such reported figures. Such adjustments may include, but are not limited to, income tax adjustments, remedial reserve
adjustments, acquisitions and other unusual items.


 


3.         
DETERMINING NUMBER OF PRSU AWARDS
EARNED.


 


(a) The “Target
Award” for Associates under this Agreement is the target number of PRSUs announced on March 14, [YEAR]. The actual number
of PRSUs earned by the Associate will be determined as described below, based upon the actual achievement of the following Performance
Goals for the Performance Period. “Threshold Performance” is the minimum level of performance that must be achieved
to qualify for any Award; “Target Performance” is the expected achievement in Return on Capital; and “Maximum
Performance” is the maximum level of performance that could be achieved that would result in an increase in the number of
PRSUs earned under this PRSU Award. The target levels of achievement for the Performance Goals will be announced no later than
March 15, [YEAR], following preparation by the Company of the financial results for the Performance Period. Subject to adjustment
pursuant to Subsection 3(b), 3(c) and 3(d) or in the sole discretion of the Committee, each such percentage correlates to a number
of PRSUs that may be earned under this PRSU Award, as follows:


 


	
        Performance Level
	 	FY Ending ROC 

Performance Goal %	 	Resulting Payout %  Earned
	Threshold	 	[PERCENTAGE]%	 	50%
	Target	 	[PERCENTAGE]%	 	100%
	Maximum	 	[PERCENTAGE]%	 	150%


 


		1	Return on Capital is generally calculated as follows: Earnings
before interest and taxes divided by net working capital deployed in the operation of the business over that course of the fiscal
year, subject to any adjustments approved by the Compensation and Leadership Development Committee or the Board.



 


(b) In the event that
the Company’s actual performance does not meet the Threshold Performance, no PRSUs shall be earned under this PRSU Award.


 




     


     


    

 


(c) If the Company’s
actual performance for the Performance Period is between Threshold and Target performance, the number of PRSUs earned shall be
straight-line interpolated between Threshold and Target performance payout percentages.


 


(d) If the Company’s
actual performance for the Performance Period is between Target and Maximum performance, the number of PRSUs earned shall be straight-line
interpolated between Target and Maximum performance payout percentages.


 


4.         
NUMBER OF SHARES.  The number and class of shares specified in the Notice of Grant are subject to appropriate
adjustment in the event of changes in the capital stock of the Company by reason of an “Adjustment Event” as such
term is defined in the Plan. Subject to any required action of the stockholders of the Company, if the Company shall be the surviving
corporation in any merger or consolidation, the PRSUs granted hereunder (to the extent that it is still outstanding) shall pertain
to and apply to the securities to which a holder of the same number of shares of Common Stock that are then subject to the PRSUs
would have been entitled.  To the extent that the foregoing adjustments relate to stock or securities of the Company,
such adjustments shall be made by the Board or the Committee, whose determination in that respect shall be final, binding and
conclusive.


 


5.           LAPSE
OF PRSU RESTRICTIONS.  Except as otherwise provided in this Agreement and subject to the terms of the Plan and achievement
of the applicable Performance Goal, after the end of the Performance Period, the Associate shall be entitled to receive his/her
total number of PRSUs determined under Sections 2 and 3, and the right to receive the shares of Common Stock under this Agreement
shall accrue:


 


(a)  as
to 33% of the PRSUs, on the day of the first anniversary of the Grant Date of the Notice of Grant,


(b)  as
to an additional 33% on the day of the second anniversary of the Grant Date, and


(c)  as
to the remaining 34% on the day of the third anniversary of the Grant Date.


 


Upon vesting, each PRSU will be settled
by payment of one share of Common Stock. Payment of such shares of Common Stock shall be made as soon as administratively feasible
after the Committee certifies the actual performance of the Company during the Performance Period. The Company shall not be required
to issue any fractional shares of Common Stock and the Company may round any fractional shares down to the nearest whole share.


 


Except as set forth in this Section 5,
or as otherwise determined by the Board and/or the Committee, or as provided in another Company plan applicable to the Associate,
if any, in the event of termination of the Associate’s employment with the Company and its Subsidiaries for any reason prior
to the vesting date, the Associate will accrue no further entitlement to the PRSUs under this Agreement, the Plan or otherwise,
and all PRSUs which have not become fully vested under this Section 5 as of the date the Associate’s employment is terminated
shall lapse and expire immediately.


 


6.          DISTRIBUTION
DATE. Subject to any overriding provisions in the Plan, or any applicable condition of receipt, as soon as administratively
feasible following the respective vesting date under Section 5 of this Agreement, the Company shall transfer to the Associate shares
equivalent to the PRSUs (less any fees and/or applicable tax withholding as set forth in the Notice of Grant and/or the Plan) which
vested as of such date, provided that in no event shall such shares be distributed later than March 15 of the year following the
calendar year in which the PRSUs vested.


 


7.          CONDITIONS
OF RECEIPT.  The Company may postpone issuing and delivering any shares in settlement of PRSUs for so long as the
Company determines to be advisable to satisfy any conditions, including the following: (i) its completing any administrative or
ministerial tasks necessary to accomplish such issuance and/or delivery; (ii) its completing or amending any securities registration
or qualification of the PRSU shares or its or the Associate satisfying any exemption from registration under any Federal or state
law, rule, or regulation; (iii) the period of time necessary to complete the financial results for the Performance Period; (iv)
its receiving proof it considers satisfactory that a person seeking to receive the RSU shares after the Associate’s death
is entitled to do so; (v) the Associate complying with any requests for representations under the Plan; and (vi) the Associate
complying with any Federal, state, or local tax withholding obligations.


 


8.          ADDITIONAL
REPRESENTATIONS FROM THE ASSOCIATE. If the Associate is entitled to receive PRSU shares at a time when the Company does not
have a current registration statement (generally on Form S-8) under the Securities Act of 1933, as amended (the “Act”),
that covers issuances of such shares to the Associate, the Associate must comply with the following before the Company will issue
any shares to the Associate. The Associate must: (i) represent to the Company, in a manner satisfactory to the Company’s
counsel, that the Associate is acquiring the PRSU shares for the Associate’s own account and not with a view to reselling
or distributing the PRSU shares; and (ii) agree that the Associate will not sell, transfer, or otherwise dispose of the PRSU shares
unless a registration statement under the Act is effective at the time of disposition with respect to the PRSU shares the Associate
proposes to sell, transfer, or otherwise dispose of; or the Company has received an opinion of counsel or other information and
representations it considers satisfactory to the effect that, because of Rule 144 under the Act or otherwise, no registration under
the Act is required.


 




     


     


    

 


9         
 REPAYMENT
OF BENEFITS ARISING FROM A MATERIAL RESTATEMENT.  Notwithstanding any provision of this
Agreement to the contrary, following a material restatement of the Company’s FY end financial statements, if the Committee
or the Board determines that the Associate is not entitled to retain any amount received under this Agreement for the period covered
by the restatement, then the Associate shall be required to refund to the Company such amounts received by the Associate under
this Agreement. The Associates subject to this paragraph are limited to Executive Officers. The provisions of this Section, without
implication as to any other section hereof, shall survive the expiration or termination of this Agreement and of the Associates
employment. 


 


10.         VOTING
RIGHTS. The Associate holding PRSUs shall not be entitled to exercise any voting rights until shares of Common Stock are transferred
to the Associate in settlement of the PRSU.


 


11.         DIVIDEND
RIGHTS. If the Company pays a Dividend or, if the Board or Committee determines that any such Dividend be paid as a Dividend
Equivalent (as such terms are defined in the Plan), such Dividend or Dividend Equivalent shall accrue to any PRSU for which the
Period of Restriction (as defined in the Plan) has not lapsed. Such Dividend or Dividend Equivalent shall not be paid to holders
of PRSUs unless or until shares of Common Stock are transferred to the Associate in settlement of the PRSU. Dividend Equivalents
shall be subject to the same vesting terms and conditions as the underlying PRSUs to which they relate and subject to any adjustment
pursuant to an Adjustment Event or a Change in Control as specified in the Plan. If any distributions on Common Stock are paid
in shares of Common Stock or other securities, such Common Stock or other securities shall be subject to the same restrictions,
including restrictions on transferability and forfeitability, as the underlying PRSU with respect to which such distributions were
paid.


 


12.         UNSECURED
CREDITOR. The PRSU Grant creates a contractual obligation on the part of the Company to make a distribution of the shares pursuant
to the PRSU Grant at the time provided for in this Agreement. Neither the Associate nor any other party claiming an interest in
the PRSU Grant hereunder shall have any interest whatsoever in any specific asset of the Company. The Associate’s right to
receive distributions hereunder is that of an unsecured general creditor of the Company.


 


13.         CHANGE
IN CONTOL. The Committee may accelerate the vesting of the Associate’s PRSUs in the event of a Change in Control, provided
that such vesting and exercisability is conditioned on the consummation of such Change in Control and either (i) the Associate’s
employment with the Company is terminated (except a termination for Cause, as defined in the Plan) in connection with, or within
24 months after, a Change in Control, or (ii) the Committee or the Board determines that (A) such outstanding PRSUs will not be
continued, assumed, converted and/or substituted, or (B) it is in the best interests of the Company to vest such outstanding PRSUs.


 


14.         PRSU
GRANTS HAVE NO EFFECT ON EMPLOYMENT. The terms of Associate's employment shall be determined from time to time by the Company,
or the Subsidiary employing the Associate, as the case may be, and the Company, or the Subsidiary employing the Associate, as the
case may be, shall have the right, which is hereby expressly reserved, to terminate or change the terms of the employment of the
Associate at any time for any reason whatsoever, with or without good cause.


 


15.         NO
REPRESENTATIONS OR PROMISES. Neither the Company nor anyone else is making any representations or promises regarding the duration
of the Associate’s service, vesting of the PRSU, the value of the shares or of the PRSUs, or the Company’s prospects.
In addition, the Company does not hereby provide any advice regarding tax consequences to the Associate or regarding the Associate’s
decisions regarding the RSUs. The Associate agrees to rely only upon the Associate’s own personal advisors for financial
or tax advice for all matters pertaining to the PRSUs.


 


16.         ADDRESSES
FOR NOTICES. Any notice to be given to the Company under the terms of this Agreement shall be addressed to the Company, in
care of its Secretary, at West Marine, Inc., 500 Westridge Drive, Watsonville, CA 95076, or at such other address as the Company
may hereafter designate in writing. Any notice to be given to the Associate shall be addressed to the Associate at such other address
as the Associate may hereafter designate in writing, or at the last known address that the Company has on file for the Associate.
Any such notice shall be deemed to have been duly given if and when enclosed in a properly sealed envelope, addressed as aforesaid,
registered or certified and deposited, postage and registry fee prepaid, in a United States post office.


 


17.         NON-TRANSFERABILITY.
The PRSUs herein granted and the rights and privileges conferred hereby shall not be transferred, assigned, pledged or hypothecated
in any way (whether by operation of law or otherwise) and shall not be subject to sale under execution, attachment or similar process.
Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of said PRSU, or of any right or privilege conferred
hereby, contrary to the provisions hereof, or upon any attempted sale under any execution, attachment or similar process upon the
rights and privileges conferred hereby, said PRSU and the rights and privileges conferred hereby shall immediately become null
and void.


 




     


     


    

 


18.         BINDING
AGREEMENT. Subject to the non-transferability of the PRSU, this Agreement shall be binding upon and inure to the benefit of
the heirs, legatees, legal representatives, successors and assigns of the parties hereto.


 


19.         PLAN
GOVERNS. This Agreement is subject to all terms and provisions of the Plan. In the event of a conflict between one or more
provisions of this Agreement or the Notice of Grant and one or more provisions of the Plan, the provisions of the Plan shall govern.


 


20.         COMMITTEE
AUTHORITY. The Committee shall have the discretionary power to interpret the Plan and this Agreement and to adopt such rules
for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such
rules. All actions taken and all interpretations and determinations made by the Committee in good faith shall be final and binding
upon Associate, the Company and all other interested persons. No member of the Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan or this Agreement.


 


21.         CAPTIONS.
Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.


 


22.         AGREEMENT
SEVERABLE. In the event that any provision in this Agreement shall be held invalid or unenforceable, such provision shall be
severable from, and such invalidity or unenforceability shall not be construed to have any effect on, the remaining provisions
of this Agreement.


 


23.         FURTHER
ASSURANCES. At any time, and from time to time after executing this Agreement, the Associate will execute such additional instruments
and take such actions as may be reasonably requested by the Company to confirm or perfect or otherwise to carry out the intent
and purpose of this Agreement.


 


24.         COMPLIANCE
WITH LAW. The Company will not issue the PRSU shares if doing so would violate any applicable federal or state securities laws,
or any other applicable law or regulation. The Associate may not sell or otherwise dispose of the PRSU shares in violation of applicable
law.


 


25.         SECTION
409A. The PRSU is intended to comply with the requirements of Section 409A of the Internal Revenue Code and will be construed
consistently with that section. Nevertheless, the Company makes no representations or warranties and shall have no liability to
the Associate or any other person, if any provisions of or distribution under this Agreement is determined to constitute deferred
compensation subject to Section 409A but not to satisfy the conditions of that section. Neither the Company nor the Associate shall
have the right to accelerate or defer the delivery of any shares except to the extent specifically permitted or required by Section
409A. In no event may the Company or the Associate defer the delivery of the shares beyond the date specified in Section 3(a) of
this Agreement, unless such deferral complies in all respects with Treasury Regulation Section 1.409A-2(b) related to subsequent
changes in the time or form of payment of nonqualified deferred compensation arrangements, or any successor regulation. Notwithstanding
anything in the Plan or this Agreement to the contrary, if the PRSU vests in connection with the Associate’s “separation
from service” within the meaning of Section 409A, as determined by the Company), and if (x) the Associate is then a “specified
employee” within the meaning of Section 409A at the time of such separation from service (as determined by the Company, by
which determination the Associate hereby agrees to be bound) and (y) the distribution of shares under such vesting will result
in the imposition of additional tax under Section 409A if distributed to the Associate within the six month period following the
Associate’s separation from service, then the distribution of such shares will not be made until the earlier of (i) the date
six months and one day following the date of the Associate’s separation from service or (ii) the day after the Associate’s
date of death.


 


26.         GOVERNING
LAW. The Agreement, PRSUs and all related documentation and matters shall be construed in accordance with and governed by the
laws of the State of California (without giving effect to principles of conflicts of laws thereof) and applicable Federal law.


 


27.         ENTIRE
AGREEMENT. This Agreement and the Notice of Grant (in each case subject to applicable provisions of the Plan) contains the
entire agreement among the parties relating to the subject matter hereof and there are no other or further agreements outstanding
not specifically mentioned herein; provided, however, that the Company may amend and supplement this Agreement in writing from
time to time as permitted under the Plan.


 


IN WITNESS WHEREOF, this Agreement is deemed
to be executed by the parties effective as of the Grant Date of the Notice of Grant.


 


West Marine, Inc.