Exhibit 10.4


 


FIRST
AMENDMENT

TO

STOCK PURCHASE AGREEMENT


 


This First
Amendment to Stock Purchase Agreement (this “Amendment”)
is made and entered into as of the 1st day of September, 2005 by and among
Meritage Homes of Florida, Inc.,  an Arizona corporation (“Buyer”) and the Stockholders (“Stockholders”)
of Greater Homes, Inc., a Florida corporation, named on the signature page hereto.  Capitalized terms used in this Amendment that
are not defined herein will have the meaning given to them in that certain Stock
Purchase Agreement, dated August 24, 2005, by and among the parties
signing hereto (the “Agreement”)


 


RECITALS


 


WHEREAS,
the parties entered into the Agreement with respect to Buyer’s purchase of all
of the outstanding shares of Company Stock of Greater Homes, Inc., a
Florida corporation effective as of the date hereof; and


 


WHEREAS,
the parties desire to amend the Agreement as more particularly set forth below.


 


NOW, THEREFORE,
for and in consideration of the foregoing premises, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:


 


1.                                       Amendment of Section 6.3D.  Section 6.3D of the Agreement is hereby
deleted and replaced in its entirety by the following:


 


D.                                    Metropolitan
Florida Realty, Inc. (“Metropolitan”)
and the Company have common ownership. 
At the Closing, the Stockholders and Metropolitan will assist Buyer in
hiring those independent contractors utilized by Metropolitan for Greater Homes
matters, as identified by Buyer; provided, however, that neither Buyer nor the
Company shall be responsible for any compensation or benefits outside of the
ordinary course of business, including commissions, fees, accrued vacation or
sick pay, severance or other similar employment related costs relating to such
persons for periods or transactions prior to the Closing Date.  Notwithstanding anything to the contrary in
this Section 6.3D, Buyer agrees that nothing in this Section 6.3D
will preclude payments by the Company of commissions for pending home sales
pending on the Closing Date involving the Company.  The Stockholders agree to cause Metropolitan
to cease operations and be dissolved as soon as practicable following the
Closing Date.


 


2.                                       Amendment to Section 8.2A(1).  Section 8.2A(1) of the Agreement is
hereby amended by deleting the phrase “including damages for breaches
continuing subsequent to the Closing Date until discovered and after a
reasonable period for Buyer to cure”.


 





















 


3.                                       Amendment of Section 8.3F.  Section 8.3F of the Agreement is
hereby deleted and replaced in its entirety by the following:


 


F.                                      The
indemnification obligations of Charles W. Gregg and Robert A. Mandell
shall be joint and several for all of the indemnification obligations of the
Stockholders set forth herein and the indemnification obligations of the other
Stockholders shall be several pro rata in proportion to the number of Shares of
the Company Stock owned by each of them as of the Closing (such that the
liability of Messrs. Conley, Snyder and Gallagher with respect to any such
indemnification obligation will be limited to the amount of such obligation
multiplied by the percentage of the Shares of the Company Stock owned by him as
of the Closing), except that each Stockholder, including Messrs. Gregg and
Mandell, will be solely liable for any breach of such Stockholder’s obligations
set forth in Sections 6.1 and 6.2 and no Stockholder will be liable for any
such breach by another Stockholder.


 


4.                                       Addition of new Section 8.3H.  A new Section 8.3H is added as follows:


 


H.                                    The
parties acknowledge that the indemnification obligations of an Indemnifying
Party shall extend to the continuation after the Closing of indemnifiable
actions or omissions that began prior to Closing, until discovery, notice to the
Indemnified Party, and a reasonable time for the Indemnified Party to cure the
continuing action or omission.


 


5.                                       Amendment of Section 10.2I.  Section 10.2I of the Agreement is hereby
amended by deleting the phrase “and have all guarantees of the Company of any
indebtedness, liabilities, performance obligations or capital or net worth of
Persons of than the Company and its subsidiaries released, in each case as
contemplated by Section 6.8” from the end of Section 10.2I.


 


6.                                       Effect of Amendment.  Except as expressly modified by this
Amendment, the terms, covenants and conditions of the Agreement shall remain in
full force and effect.


 


7.                                       Binding Effect.  This Amendment is binding upon and shall
inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.


 


8.                                       Counterparts.  This Amendment may be executed in
counterparts and transmitted by facsimile transmission, and each of such
counterparts, whether an original or a facsimile of an original, will be deemed
to be an original and all of such counterparts together will constitute a
single document.


 


2





















 


IN WITNESS WHEREOF,
the parties hereto have executed this Amendment as of the date first above
written.


 


	
  Witnesses:

  	
  MERITAGE HOMES OF FLORIDA,

  
	
   

  	
  INC., an Arizona
  corporation

  
	
   

  	
   

  
	
  /s/ Jeff Beck

  	
   

  	
  By:

  	
  /s/ John R. Landon

  	
   

  
	
  Name:

  	
      Jeff Beck

  	
   

  	
   

  	
  John R. Landon, Co-Chairman and Chief

  
	
   

  	
   

  	
  Executive Officer

  
	
   

  	
   

  
	
  /s/ James J. Hoctor

  	
   

  	
   

  
	
  Name:

  	
      James J. Hoctor

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By signing below Meritage Homes

  Corporation joins this Amendment for the

  purposes of Sections 1, 6, 7 and 8 and agrees

  that it will have the same rights and

  responsibilities with respect to these sections

  in this Amendment as Buyer.

  
	
   

  	
   

  
	
   

  	
  MERITAGE HOMES CORPORATION,

  
	
   

  	
  a Maryland corporation

  
	
   

  	
   

  
	
  /s/ Jeff Beck

  	
   

  	
  By:

  	
  /s/ John R. Landon

  	
   

  
	
  Name:

  	
      Jeff Beck

  	
   

  	
   

  	
  John R. Landon, Co-Chairman and Chief

  
	
   

  	
   

  	
  Executive Officer

  
	
   

  	
   

  
	
  /s/ James J. Hoctor

  	
   

  	
   

  
	
  Name:

  	
      /s/ James J. Hoctor

  	
   

  	
   

  



 


[Signature
Page to First Amendment to Stock Purchase Agreement]


 





















 


	
   

  	
  STOCKHOLDERS

  
	
   

  	
   

  
	
  /s/ Jeff Beck

  	
   

  	
  /s/ Robert A. Mandell

  	
   

  
	
  Name:

  	
  Jeff Beck

  	
   

  	
  ROBERT A. MANDELL

  
	
   

  	
   

  
	
  /s/ James J. Hoctor

  	
   

  	
   

  
	
  Name:

  	
  James J. Hoctor

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Jeff Beck

  	
   

  	
  /s/ Charles W. Gregg

  	
   

  
	
  Name:

  	
  Jeff Beck

  	
   

  	
  CHARLES W. GREGG

  
	
   

  	
   

  
	
  /s/ James J. Hoctor

  	
   

  	
   

  
	
  Name:

  	
  James J. Hoctor

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Jeff Beck

  	
   

  	
  /s/ Hampton P. Conley

  	
   

  
	
  Name:

  	
  Jeff Beck

  	
   

  	
  HAMPTON P. CONLEY

  
	
   

  	
   

  
	
  /s/ James J. Hoctor

  	
   

  	
   

  
	
  Name:

  	
  James J. Hoctor

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Jeff Beck

  	
   

  	
  /s/ Simon Snyder

  	
   

  
	
  Name:

  	
  Jeff Beck

  	
   

  	
  SIMON SNYDER

  
	
   

  	
   

  
	
  /s/ James J. Hoctor

  	
   

  	
   

  
	
  Name:

  	
  James J. Hoctor

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Jeff Beck

  	
   

  	
  /s/ Stephen Gallagher

  	
   

  
	
  Name:

  	
  Jeff Beck

  	
   

  	
  STEPHEN GALLAGHER

  
	
   

  	
   

  
	
  /s/ James J. Hoctor

  	
   

  	
   

  
	
  Name:

  	
  James J. Hoctor

  	
   

  	
   

  



 


[Signature
Page to First Amendment to Stock Purchase Agreement]