Free Response to Motion - District Court of Arizona - Arizona

Meritage Homes Corporation v. Greg Hancock, et al. Case No.: CV-04-0384-PHX-ROS

Exhibit No. 57 109 130 235 260 507 547 548

Description Financing Documentation The Martz Agency Creative Brief Rick Hancock Homes Balance Sheet Agreement of Purchase and Sale of Assets ACC Pending File Inquiry License Agreement Email correspondence Letter to Jon Titus

Case 2:04-cv-00384-ROS

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EXHIBIT 57

Case 2:04-cv-00384-ROS

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Filed 09/19/2008

Page 2 of 34

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Case 2:04-cv-00384-ROS

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EXHIBIT 109

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THE MARTZ AGENCY CREATIVE BRIEF
Client: Hancock Communities
Job Number: 5100-14675
Date: May 20, 2004

Job Description: Meritage Homes Name Change Campaign
O\~erview:
Hancock Communities has been building in Phoenix for over 50 years. TIoughout the yeas

they have had name changes from Hancock to Watt Hancock to Hancock Homes and now
Hancock Communities. The Meritlge Company bought Hancock Communities iiout 3 year ago'

. anú are ready to changé the name from J:ancock Communities to Meritage Homes.
Mcritage builds in California, Tcxas, Arizona and Nevada so there is strngth in the corporate

brand. The parent company has developed a new logo and color palette as well as a graphic standards manual which will be provided to the Agency.

Issues and Considerations · Understanding the currcnt brand image and perceptions of Hancock
· Understanding the current brand image and perceptions of · Reinforcing brand assurance a.mong key

Meritage

audiences

· Sequence of message delivery - audience priority · Concerns from key tMget audiences, i.e. existing homeowners, Reators, prospects, vendors,
etc. regarding new name means new company, customer serice, homeowner associations,

contracts, etc. · Competitors - how will competitors use this to their advantage
Audience IJriority/CODcerns
· Current residents - "What does this name change mean to me?" "Will my service level

· Realtors - "Is this going to change our working relationship?"

· Prospects - "15 the value of what i am buying going to change?"

· Vendors - "''''ill this change our working relationshipT "WillI still work with the same
Recommended Strategy

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change?"

Based on tiie above issues and considerations a~ welllhe taget audience concerns, the Agency
recommends taking a "blanket approach" and communicating the name change to key taget

audiences base.d on their level of influence.

. Hancock Communities need to communicate to current residents why it is changing its name and whaithis means to them. TIiey need to be assured that the new company will continue or exceed their le\'el of expectations.
Key inI1uclicer withiii the community as well as Realtors should be advised the name change and whai this means to them.

CONFIDENTIAL

MER043390
Case 2:04-cv-00384-ROS Document 614-2 Filed 09/19/2008 Page 5 of 34

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Press releases have heen develope.d on Meritage buying.

Hancock Commwiities. However, a

press release on the name change should be sent to the Phoenix and surrounding Valley media aIouncing the name change. Additional media relations tactics will include photo opportnities during signage change, interviews with key Meritage executives, letters to the editor and aricle placement.

Wbat is the advertising expected to accomplish'? A smooth and positive trsition into the new name. The campaign will be the basis for all other name changes within the company. il will communicate to all audiences that the
company has a new name, stronger backing, growth oriented.

Who are wetallung to?
. Curent homeowners, prospets, Realtors, vendors, employees.

What is going on in the market?
The real estate market is "hot" AU builders are experiencing great sales. Interest rates

are low but expected to rise after the fourt qua.
Housing star,; rnt an all time high in 2003 with tota stars hitting i .85 milion. New home sales were up 8% from 2002. 30 year mortgage rates were at their lowest in 30
years in 2003.

4lr:i:i.

The public at large is used to seeing the home building industry consolidating. Examples are Pulte buyig Del Webb, Beazer Homes buying Hancock Homes, and the most recent acquisition of Continental Homes by DR Horton.

The Meritage Corporation is part of the Public Homebuilders Council of America. l1iey share this mcmbcnihip with i 3 of the leading public homebuilding companies in the US.
For the last year and a hair, all i lancock materials have said "A Meritage Company" - so this transition may not be a toial surprise to everyone.
What is the ke)' insight? The Meritage Company brings with it the strength and backig of a national company.
l\1eritage is listen on the New York Stock Exchange. They

are a top raning US

homebuilder with a proven record of growth, including compounded anual grov..th rates
of 37% in net earnngs and 46% in home closing revenue since becoming a publicly

traded homebuilder at the end of 1 996.
I~ one simple sentence, what is the idea we need to communicate'! Hancock Communities is now Meritage Homes - strong, committed, growing company.

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CONFIDENTIAL

MER04391
Case 2:04-cv-00384-ROS Document 614-2 Filed 09/19/2008 Page 6 of 34

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What doe tbs 1Iel to li? .
Stabilty, fiitdal ba1i:fng, dtpdäbílifý, litirprcig 'Md lO'átiCiiii; b:aul: of thc sttii-g

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ànd finaaial backig '1fui.G~Yi kio'Wicgl th~(l c:óiøii ~m be aiuiid,.e~~ë
and sophi1icad ta~ni ¡Jt, 'fñgt of Ii lät! b'kl but stiU li~ die Sl and &:úbiity of
II sma btilli.an wit iirøtU'öli)l1 tö trW.

Whut Glb!tidâ1l0rimä~.tbe ~ Îifâble? . Meritage was ranke l f1 in Set. 2QØ ~ lO\lPøttt Growlng CöiP'éte- in Aioa

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What ar the mawi in the lid?
Listng of all C'óJnlÎes, mil', ltigo, ~lep n'üW. mt) lo-go, '¡Ask US"

'fet
Agency proVides draft lettes to Il~k Coliwiiú(; htïmewn, Phoenix Re:ltor, lrpöt
database and vendor - 6115

Client approves let - 6!O

Agncy provides nae change prss releae to Clieli for aWToval - 6/15

Recolide ea. lö cmCl - 6/4
Approval of catn 6/15
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CÜent appres pr release - 611 Letters male .. 6I

Press rele distüdan åöd f~w-u - 6t3
Collåteral mateal a~d. ~ ll, etc) -1/1

FlTd: Ne~ ad - AZ R.qRhit -1/10
Outdoo bo up - send w~k of July
Job Specfies

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. CrtiVê E1emcItfs: Oud09r, Newspape. Direct Mal, c()nat~ral
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· Siz of ad: Pull Page 4/coloT

APPROVAL

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Case 2:04-cv-00384-ROS Document 614-2 Filed 09/19/2008 Page 7 of 34

EXHIBIT 130

Case 2:04-cv-00384-ROS

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Page 8 of 34

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Page 9 of 34

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EXHIBIT 235

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AGREEMENT OF PURCHASE AND SALE OF ASSETS
BY AND

AMONG

MERITAGE CORPORATION,
HANCOCK-MTH BUllDERS, INC.,
HANCOCK-MTH COMMUNITIES, INC.,

HC BUllDERS, INC.
AND

HANCOCK COMMUNITIES, L.L.C.
Dated May 7, 2001

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AGREEMENT OF PURCHASE AND SALE OF ASSETS
'This AGREEMENT OF PURCHASE AND SALE OF ASSETS (the "Agreement") is
Dlade as of May

7, 2001, by and among MERITAGE CORPORATION, a Marland

corporation ("Meritage or Parent"); HANCOCK-Mm BUILDERS, INC., an Arizona corporation ("Builder Buyet'); HACOCK-MTH COMMUNITIES, INC., an Arizona
corporation ("Sales Buyer," and collectively with Builder Buyer, "Buyers"); DC BUILDERS,
collectively with HC Builders, "Sellers").

INC., an Arona corporation ("HC Builders" or "Sellet'), and HANCOCK
COMMUNITIES, L.L.C., an Arizona limited liabilty company ("HC Sales" or "Seller," and

RECITALS
1. Pursuant to this Agreement, Buyers wil acquire all or substantially all of the nonreal propert assets of the Hancock Communities Business.
2. The paries to this Agreement have concurently entered into a Master

Transaction Agreement ("Master Agreement"), Agreement of Purchase and Sale of Real
Propert ("Real Propert Agreement"), Escrow Agreement, and Indemnification Agreement,

all described in the Master Agreement. Al capitalzed terms contaied herein but not otherwise
defined wil have the meang ascribed to it in the Master Agreement.

In consideratiop of the covenants and mutual agreements set forth herein and other good and valuable consideration, the receipt and suffciency of which are hereby acknowledged, and in reliance upon the representations and waranties contained herein, the paries agree as follows:
ARTICLE

I

PURCHASE AND SALE OF ASSETS
1.1 Agreement. This Agreement, together with the Master Agreement and
Indemnification Agreement, each incorporated herein by reference, wil constitute a binding

contract on the par of Sellers to sell and Buyers to purchase certai assets of the Hancock
Communities Business unrelated to real property.

1.2 Assets to be Purchased. Upon the term and subject to the conditions set forth herein and in the Master Agreement, and in reliance on the respective representations and
waranties of the pares contaied herein and' in the Master Agreement, at the Closing, (i) HC

Builders agrees to sell convey, grant, assign, and transfer to Builder Buyer and Builder Buyer the Assets, held by HC Builders, and (ü) agees to purchase and acquire from HC Builders all of HC Sales agrees to sell, convey, grant. assign and transfer to Sales Buyer and Sales Buyer agrees to purchase and acquire from HC Sales al of the Assets held by HC Sales. The term "Assets"
wil mean:

A. All assets disclosed on the Closing Balance Sheet, except for the Real
Property Assets (as defied in the Real Propert Agreement);
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ty..

B. receivable;

Any cash, cash equivalents, current assets, accounts receivable and notes

C. All prepaid expenses, a list and description of which is set forth on
Schedule 1.2;

D. All equipment, furniture, furnishings, inventory, machinery, software,
supplies, tools, vehicles, and other personal propert owned or leased by Sellers, as listed
and described on Schedule 1.2;
E. All rights and benefits in all (1) processes, know-how, technical data, and

other trade secrets; (2) sales forms and promotiona and advertising materials; (3) copyrights, patents, trademarks, and applications, registrations, and renewals with respect thereto; (4) customer, supplier and contractor lists, (5) software licensing and equipment

rental agreements associated with computers or data processing, and (6) goodwil
associated therewith. Additionally, Greg Hancock and Sellers hereby grant to Bu.yers au" ·

exclusive license to use the names "Hancock Homes" and "Hancock Communities," and all variations of or derivations from such names and any and al logos used in connection therewith for a period of six years from the date of the Closing. The foregoing is hereinafter referred to as the "Intellectual Propert";
F. All of the books, instruments, papers, and records of whatever nature and

wherever located, whether in written form or another storage medium, including without

limitation (1) accounting and financial records; (2) propert records and reports; (3)
environmental records and reports; (4) personnel and labor relations records; and (5)
propert, sales, or tranfer tax records and return; provided, however, that such books,

instruments, papers, and records shal exclude any documents relating exclusively to the Excluded Assets;

G. To the extent tranferable, all the right, title, and interest in al approvals,
authoriations, certificates, consents, franchises, licenses, permts, rights, variances,

subdivision maps, plans, entitlements, and waivers acquired, being acquired, applied for, or used, and all agreements with, and any waivers, licenses, permits, and approvals from
or to any governmental or quasi-governmental agency, deparment,. board, commission,

bureau or any other entity or intrumentalty, and other authorities in the nature thereof,
al as related to the Assets, a list and description of which is set .forth on Schedule 1.2; and
H. All rights and benefits'

in to and under all vendor, supplier and equipment

lessor agreements concerng any supplies, services, equipment and furniture utilized for
offce purposes.

1.3 Purchase Price. The purchase price to be paid by Buyers for the Assets wil be as

provided in Section 2.5 of the Master Agreement.
1.4 Closing. Arcles VII and VI of

the Master Agreement is incorporated herein by

reference as applicable.
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ARTICLEll
REPRESENTATIONS AND WARRNTIES OF PARENT AND BUYERS
2.1 Incorporation by Reference. The representations and waranties contaied il

Aricle III of the Master Agreement are incorporated herein by reference.

ARTICLEllI
REPRESENTATIONS AND WARRNTIES
OF

SELLERS

3.1 Incorporation by Reference. The representations and waranties contaied in

Aricle IV of the Master Agreement are incorporated herein by reference.
ARTICLE

IV

ADDITIONAL AGREEMENTS

4.1 Additional Agreements. Subject to the terms and conditions herein provided,
each of the paries hereto agrees to take, or cause to be taken, al action and to do, or cause to be
done, al things necessar, proper, or advisable to consummate and make effective as promptly

as practicable the transactions contemplated by this Agreement, including obtaining all necessar
waivers, consents, and approvals and effecting all necessar registrations and fiings and

submissions of inormation requested by governmental authorities. Sellers agree that they, at any
time before or after the Closing, wil execute, acknowledge, and deliver any further deeds,

assignments, conveyances, and other assurances, documents, and instruments of transfer
reasonably requested by Pareiit, and wil take any other action consistent with the terms of this Agreement that may reasonably be requested by Parent, for the purpose of assigning,
tranferrg, granting, conveying, and confirming to Buyers, or reducing to possession, any or al

property to be conveyed and transferred by this Agreement. If requested by Parent or Buyers, Sellers further agree to prosecute or otherwise enforce in its name for the benefit of Parent or Buyers, any claims, rights, or benefits that are transferred to Buyers by this Agreement and that
require prosecution or enforcement in its name. Any prosecution or enforcement of claims, rights, or benefits under this Section shall be solely at Buyers' expense, unless the prosecution or

enforcement is made necessar by a breach of this Agreem.ent by Sellers. Afer the Closing and
for a period of 6 months, the pares wil cooperate in good faith and use commercially

reasonable efforts to resolve any issues which may arise in the transition of the Hancock
Communities Business.

V GENERAL 'PROVISIONS
ARTICLE

5.1 Notices. Al notices, consents, and other communications hereunder shall be in
writing and deemed to have been duly

given when (a) delivered by. hand, (b) sent by telecopier

(with receipt confirmed), provided that a copy is mailed by registered mail, postage prè-paid retu receipt requested, or (c) when received by the addressee, if sent by Express Mail, Federal

Express, or other express delivery service (postge pre-paid return receipt requested), in each case to the appropriate addresses and telecopièr numbers set forth below (or to such other
addresses and telecopier numbers as a par may designate as to itself

by notice to the other):

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If to Buyers:

Meritage Corporation 6613 North Scottsdale Road, Suite 200 Scottsdale, Arizona 85250 Phone: (602) 998-8700 FAX: (602) 998-9162 Attn: Chief Financial Offcer
Snell & Wilmer L.L.P.
./

With a copy to:

One Arzona Center Phoenix, Arizona 85004-0001 Phone:'(602) 382-6252 FAX: (602) 382-6070 Attn: Steven D. Pidgeon, Esq.
American West Homes, Incorporated 250 Pilot Road, Suite 140
. Las Vegas, Nevada 89119

If

to Sellers

'*

Attn: Chief Financial Offcer
Hancock Communities, L.L. C.

4369 N. 66th Street Scottsdale, Arizona 85251 Attn: Greg Hancock

With a copy to:

The Lubbers Law Group 2500 W. Sahara Avenue, Suite 206
Las Vegas, Nevada 89102

Phone: (702) 257-7575 FAX: (702) 257-7572 Attn: Ed Lubbers, Esq.
Titus, Brueckner & Berr, P.C. 7373 N. Scottsdale Road, Suite B252

Scottsdale, Arizona 85253
Phone: (480) 483-9600

FAX: (480) 483-3215 Attn: Jon A. Titus, Esq.
5.2 Counterpars. This Ageement may be executed in any number of counterpars,

and each counterpar shall constitute an original instrument, but al such separate counterpars
shall constitute one and the same agreement.

this Agreement

shall be governed in all respects by the laws of the State of Arizona without regard to its confict

oflaws rules. .
29323.0001 IMAHONED\PHX92269.S

5.3 Governg Law. The validity, construction, and enforceability of

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5.4 Assignment. This Agreement shall not be assigned by operation of law or otherwse, except that Buyers may assign all or any portion of its rights under this Agreement to any wholly owned subsidiar, but no such assignment shall relieve Buyers or their successor of
their priar liability for all obligations of Buyers hereunder, and except that this Agreement

may be assigned by operation of law to any corporation or entity with or into which Buyers may be merged or consolidated or to which Buyers transfer all or substantially all of their assets, and

such corporation or entity assumes this Agreement and all obligations and undertakgs of this Agreement shall be null
the provisions of Buyers hereunder. Any assignment in violation of

/'

and void.

5.5 Gender and Number. The masculine, femine, or neuter pronouns used herein
shaU be interpreted without regard to gender, and the use of the singular or plural shall be

deemed to include the other whenever the context so requires.

5.6 Schedules and Exhibits. The Schedules and Exhibits referred to in this
Agreement and attached to this Agreement are incorporated in this Agreement by such reference as if fully set forth in the text of this Agreement.

5.7 Waiver of Provisions. The terms, covenants, representations, waranties, and
conditions of this Agreement may be waived only by a written intrument executed by the par
waivig compliance. The failure of any pary at any time to require performance of any

proviions hereof shall, in no manner, affect the right at a later date to enforce the same. No waiver by any pary of any condition, or breach of any provision, term, covenant, representation, or waranty contaied in this Agreement, whether by conduct or otherwise, in anyone or more

instances, shall be deemed to be or construed as a further or continuing waiver of any such condition or of the breach of any other provision, term covenant, representation, or waranty of
this Ageement.
5.8 Costs. If any legal action or any arbitration or other proceeding is brought for the

enforcement of this Agreement, or because of an alleged dispute, breach, default, or
misrepresentation in connection with any of the provisions of this Agreement, the successful or prevaiing par or pares shall be entitled to recover reasonable attorneys' fees, accounting fees, and other costs incurred in that action or proceeding, in addition to any other relief to which it or
they may be entitled.

5.9 Amendment. This Agreement may not be amended except.by an instruent in.
wrting approved by the. paries to this Agreement and signed on behalf of each of the paries hereto.
5.10 Severabilty: If any term provision, covenant, or restrction of this Agreement is

held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms, provisions, covenants, and restrictions of this Agreement shall remain in full force and
effect and shall in no way be afected, impaied, or invalidated and the court shall modify this

Agreement or, in the absence thereof, the paries shall negotiate in good faith to modify this
Agreement to preserve each pary's anticipated benefits under this Agreement.

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5.11 Binding Effect. Subject to the provisions and restrictions of Section 5.4, the provisions of this Agreement are binding upon and wil inure to the benefit of the paries and
their respective heirs, personal representatives, successors and assigns.
5.12 Constrction. References in this Agreement to "Sections", "Aricles", "Exhibits",

and "Schedules" are to the Sections and Aricles in, and the Exhibits and Schedules to, this
Agreement, unless otherwise noted.

5.13 Time Periods. Except as expressly provided for in this Agreement, the tie for

pedormance of any obligation or takg any action under this Agreement wil be deemed to the applicable tie period
expire at 5:00 o'clock p.m. (phoenix, Arizona time) on the last day of

provided for in this Agreement. If the tie for the pedormance of any obligation or takg any
action under this Agreement expires on a Satuday, Sunday or legal holiday, the tie for

pedormance or takg such action wil be extended to the next succeeding day which is not a
Saturday, Sunday or legal holiday.
5.14 Headings. The headings of this Agreement are for puroses of reference only and
wil not lit or define the meaning of any provision of this Agreement.

5.15 Entire Agreement. This Agreement, the Real Property Agreement, the Master

Agreement and the Indemnification Agreement and all certificates, schedules and other
documents attached to or deliverable under such agreements (collectively, the "Agreements") constitute the entire agreement, including with respect to representations and warranties, between
the paries

pertaig to the subject matter contaied in the Agreements. Al prior and

contemporaneous agreements, representations and understandings of the paries, oral or wrtten, are superseded by and merged in the Agreements. No supplement, modification or amendment

j\greenients. .

of the Agreements wil be binding unless in writing and executed by the pares to the

5.16 Arbitration. Any disputes arsing hereunder wil be resolved pursuant to the
dispute resolution provisions of Exhibit I to the Master Agreement.

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------

Qt6-884-860

T-868 p. 002/005 F-673

lIY-0T-001 It :53 FROIiRITAGE HOIiS

iN WITESS WJF. lho pOI have i; th ~ to "0 ." on
tb da firs wi iiovo by ib reoi; o!f"" _oder dulY ii

l\AGE CORPORATI01', ,. Maan corpration

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lU: C()~o~o

ßA.COCK-MTR in.JLDERS, INC, an Arizna cotporon

¡¡G-:T I',,"r~
CO-CÆO

BACOCK-MTB col\rmS, INC.
an Arona corporatio

(Sigiiture Pa~e to Asset Agreemcotl

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Case 2:04-cv-00384-ROS
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.~

07/01 09: ~~ FAX 480 483 321~

._._--~TlnIS BRUECKNR

~004

101 15: 13 FAX 802 382 8970

SNEL & WILM E

~004

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ISiguåtu ,Page to &sst Agreement)

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EXHIBIT 260

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e'

Page i of i
Arz. Corp. Comm. .- Corporations Division

Arizona CorPoration Commission
02/27/2004

State of Arona Public Access System

10:43 AM

Pending File Inquiry
File Number: NIl i 14271 Reservation Nwnber: 53612
Corporation Name: HANCOCK FAMLY BUILDERS, INC.
Designation Type: N NAME RESERVA nON

Pending Type Cod~: R NAME RESERVATION Location Code: P PHOENIX
Date Received: 01/06/04

Date Retured: ?

Approval Date: ?

Reason Retued: BLAN
Corp Type:
Expedited Date: 01106/04

User lD: TANAr
Expiration Date: 05/06/04

Contact: rims, BRUECKNR

& BERRY, P.e.

Address: ATT: NANCY ROBINS
7373 N. SCOTTSDALE ROAD

e

SCOTTSDALE, AZ 85253 Comments: ON BEHAF OF RICK HANCOCK Comments: (480) 483-9600 FAX (480) 483-3215
. Return to STARAS Main Menu
. Return to A.CCo Corporations Division Main Paee

. Return to Arizona Corporation Commission Home Pai:e

.

RHAN00299

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EXHIBIT 507

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(

LICENSE AGREEMENT
THIS AGREEMENT is made rhi 3¿t"' day of May, Zool, by ari among Gregory S.

Hancocl ("Hancock"), an individual, He Builders, - In., an Arizona corporation ("He
Builders"), Hancock Conuunities, L.L.C.. an Arizona limiTed liabilry company ("HC Sales"') (Hancock, HC Builders, and HC Sales are collectively referred to herein as "Liccnsor") and

Hancock-MT Builders, Inc., an Arizona corporation and Hancock-MTH CommuIÚties, Inc_.
an Arizona corporation (collectively referred to herein as "Licensee").

RECITALS
He Builders. He Sales and Licensee:. togeUtei with other entitles have entered into uiat
cerrain Master Traaction Agreement and tht certin Agreement of Purchase 'and Sale of

Assets borh dared May 7. 2001 and pursuant to which. Licensór ha agreed to license its
Liceried Marks (as derined below) ¡o Licensee on tle term and conditions set forth herein;

WHEREAS, Licensee wishes to obtain an exclusive License to Use Licensor's Licensed Marks;..and

--

:';:-w:.=.:W)

WHREAS. Licensor. desires to grant ~uch a License to Licensee upon the ¡eon and
conditions set fort herein.

NOW, THEREFORE, for good and valuable consideration, the receipt and suffciency

of which ar hereby acknowledged. the parties hereto agree as follows_
L Definition. "Licensed Marks- shall mean Ute word marks "Hancock Homesh and "Hancock Corrunitiesr and any and all logos used in connecUon

therewith.
2. Grantor License. Licensor herebý grants to Licensee a personal. exclusive, nonrrferable, nonassignable license (0 use the Licensed Marks during rhe

term of ¡rus Agreement.
3. Use of Licensed Marks.

3.1 Th Agreemen( shal not be effective until tpe parties have closed on the
Master Transaction AgTeernent, Agreement of Purchase and Sale of

Assets and related documents and after Licensee has taken all actions

required as conditions to such cio:ing (the "Effective Date).

.

"
\;T:'rlSI VOL1'.OOC'.,,~l)I.IS;;'.ì..dl'nai~ ,.¡:rAI 1..10J;.di:

EXHIBIT NO.~

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\1t1NømøS27

JAeaUarn A AUNi eeR 50151

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3.2

Licensee may not seek any state. federal or oth~r regislru(ion of the
Licensed Marks withoU! firsr obtainng Licensor's written consent, which

it may withhold in its sole discretion. Any such applications shall be made in Licensor's name, and Licensee will cause any applications or registrations which are nor in Licensor's name to be tranferred to
Licensor.
3.3 Subjea to Sections 3.1 and 3_2 above. Licensee shall have me right to

use the Licensed Marks in connection with promotion of Lii;ensee's

services and business operations in strict compliance with (his
Agreement.

3.4 Licensee acknowledges Licensor's exclusive right, tide and ínterest .in

and to the Licensed Marks. and Licensee shall mark any advertising or promotional material utiliing or reproducïng the Licensed Marks in such manr as to preserve and protect all rights of Licnsor therein.

3.5 Nothg contained in ths AgreemeDt shall be constred as conveyig to
Licensee any right. title or interest in or to any of the Licensed Marks
otlier th an express right to a permis:ive use thereof as sraed hei-in.

.(

3.6

~~j
3.7

Licensee shall cooperate to me fulleS( extent possible with Licensor or its nominee £0 tae such ac.tions as Licensor in its sole dic:retïon may consider necessar to protect the Licensed Mars.
Licensee wil fuJly. cooperate in maintaining aDd defending the ownership

and validity of the Licensed Maks agait inriemem:, claims of
iningement, disparagement, dishonor or damage to the value of any

other thd party rrademark .or business nae. Licensee wil prompuy notify Licensor of (i) any inringement or unauthorized ust: of the
LiceIied Marks by any third party or (ii) any asserton by ¡iny third
party tht Licensee's use of the Licensed Marks violates any applicable

law or tends (0 defame, dishonor. damage or disparage a mark; owned by
such UiIrd part. Licensee shal notify Licensor of any such action or
claim, and Licensee shall intiate or defend, at Licenee's sole COSt and

expene. legal action wirh respect to the Licensed Marks. though
counsel reasonably approved in advilni;e by Lic.ensor.
3.8 Licensee agrees that Licensee will not do any act which ir icows, or it is

notified by Licensor, may affect the yaUdiry of any legal protection afforded to the Licensed Marks in any geographical or politicaL.
subdivision.
4. GoodwilL. Licensor and Lice.nsee each acknowledge that the Licensed Marks
have: acquired a valuable secondary meaning .and goodwill with The public, wirh a reputa(jon of

....

2

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highest quality and perfonnance. Accordingly, Licensee undertakes and agrees not to use the

Licensed Marks in any manner whaGoever which. directly or indirectly, would derogate or derract from the Licensed Mark's repute, value, marketability degree of public recognition or
popularity.
5. Term. This Agreement shall terminate on that date which is six (6) years after rhe Effective Date, provided that it has no! previously been iermnated pursuan (0' this Agreement.
6. Indemnw_ Licensee hereby agrees to defend, indemnfy and hold Licenor harmless from any and all loss, cost, chages. fees. impositions or damages of any kid whatsoever, either civil. crimnal, or admirativc and all reasònable expenses mi.rred by

Licensor, including but not limiied to reasonable attorneys' fees, as the result of any act or

omission of Licensee which is related in.any way to Licensee's (or its agents. representaúves, employees, assignees. affiliates or other related partics) use or artempted US" of rhe Licensed

Marks. Ths indemnty also expressly extends to any matter or thng, directly or indirectly caused by the action or inction of Licensee. which causes Licensor to incur any ini:reased
expense, including admistrative expenses or costs. whether or not such matter or thng is in

the narue of a claim or liabilty. Licensor shall have we right to conuol and direct we

investiganon, preparation, defense and settlement of each indemfied marter at Licensee's expense and Licensee shall tully cooperate with Licensor ar Licensee's expense in conntion
with rhe foregoing.

.(

7.

Tei:ination.
7.1

Licensee may at its opdon imediately termte this Agreement by giving wrttn notice thereof to Licensor in the eVClt of the happenig of .
ariy of the following:
7. L 1 If Licensor becomes insolvent, or a petItion in bankptcy is

filed, or any similar relief is fi1ed by or against Licensor. or a
receiver is appointed with respect to any of the assets of

Licensor, or a liquidation proceeding is conuenced by or against
Licensor; or

7. i.2 Failure to correct or CUre any marerial breach by Licensor of any

covenant or obligaiion under ths Agre:ement hereunder within

thity (30) calendar days after n:ceipt by Licensor of a written
norice from Licensee specifying such breach.
7.2 In the event ihat all or a controlling interest in Licensee, or a parent of
Licensee. is acquired by an unrelared third pany by merger, .

or private or public purchase of securiries or assers, Licensor shall have
che right ro terminate this Agreement upon ten (10) days wrirten noúce.
3

acquisition

.

\\.liruS".VOll\DOC\4J90. i SJ\Tridcmark -"tiltu Ic05.!JOI ).uQC

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7.3 Licensor shall have: the right to imediately terminate this Agr.eemenr

without prior notice if Licensee: its employees or agents shall breach any
provision of this Agre:ement or the Masie:r Tranaction Agreemeni.
8. Effect of Termnation and/or Expiration.

8.1 Upon the expiratin or termtion or this Agreement for whatever
reason, Licensee wil imediately cease all Use of the Licensed Macks

and deliver to Licensor or destroy aU materia bearng the Licensed
Marks_ Licensee shall also tae action necessary ro trnsfer and assign

to Licensor or its nominee any right. title or Inrerest to the Licensed
Marks which Licensee may have acquired in any maner as a reSUlt 9f its activities under th Agreement.
8 "l Notwithstanding any temiation in accordance with the foregoin.
Licensor shall have, and hereby reerves all. th righis and remedies

which it ha or which are grmed to it by operation of law. for damge
for breach of ths Agreement on the part of the Licensee.

9_ Additional Pares. The pares 1:0 ths traction inæid that any and a.
subsidiaries of Licenee or affliate business entities which are involved with Licensee,
whethe~ or not such entities are organized, fanned. established or operationa before or afer

e-

r:- ".-: -

-::"._6.

me date of this Agreement. are to be. bound by ths Agrement. Licens~ agrees tht any SUch entities shall execUte such documentation as Licenor sha require in order to evidence the fact that they arc bound by ths Agrement. Licensee shall disclosi; to Licensor th identity of each such enticy on or before the later of me dare of tls Agreement or the date on which such entity
comes into existence.

10. NO£iee. Any nodce required or permtted to be given under this Agreemem

stiall be sem in wrinng and shal be deemed to be duly given five (5) days after mailing if mailed or delivered to SUh pai, by United States cenifcd. retu receipt requested. Íirst
class air mail to the address indicaied beiow:

If to Licensor:

Hancock Commuruties, LLC
8501 E. Prncess Dr.. Suite 200

Scottsdale, AZ 85255 Attention: Gregory 5_ Hancock
With a copy to:

Kun M. Brueckner. Esq_
Titus, Brueckner & Berr, P.C.

7373 N. Scottsdale Road
Suite B-252

5coti:dale, AZ 85253

4

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If to Licensee:
Meritage Corporation

6613 North Scottsdale Road, Suite 200 Scottsdale, Arizona 85250
Phone: (602) 998-8700

FAX: (502) 998-9162 AUn: Chief Financial Offcer
. With a copy to:
Snell & Wilmer LL_p.

One Arizona Center

Phoenix, Arona 85004-01
'Phone: (602) 382-6252

FAX: (602) 382-6070 Attn: Steven D. Pidgeon. Esq.
or to such other addrss as the partes may provide to each other from tie to time.

11. Amendment. Th Agreement may not be amended, moified or extended
except by a writn insuiment signed by an autorid executive offcer or both Licensor and

Licensee.

e.

.~~r::

12. Governig Law. This Agreement shall be construed and inrpreted in
accordance with the Jaws of the State of Arzona.. e~i;udin its priciples of , confcts

of laws,

and each of the paries he.eto irrevocably agres to commt to the juridiction and venUe of the:

Courts of the: State of Arizona.

13. Waiver. Any failure of Licensor to enforce, at any time or for any period of
time, any of the provisions under this Agreement shall not be constred as a \laiver of the right

of Licensor to enforce such provisions unless said waiver is in wriung, and signed by an
authorized executive officer of Licensor.

14_ SurvivaL. Licensee recognizes and agrees that its obligations under Sections 3
and g of this Agreement shall survive the termination of th Agreement and Licensee shal be bound by such obligations after termination thereof.
15. Separabilty of Provisions. Each provision of this Agreement shall be

considered separable and if for any reason any provision or provisions herein are detemùned to

be invalid or conrrary 10 any existig or furure law, such invalidity shall not imair the
operation of this Agreemem or affect rhose portions of this Agreement which are valid.

16. Remedies. In the event Licensee: breaches or threatens to breach any of t:e covenai. expressed herein, the damages to Licensor wil be irreparable and diffcult to
ascertain; therefor. Licensor may apply to a court of competent jurisdiction for injunctive or
other equitable relief to restrain such breach or threat of breach. without preventing Licensor

.

5
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(

Irom seeking any other relief in eirher law or equity. Licensee. hereby waives any requirement any bond or other financial at law or in equity to the effect ilat Licensor is required to post
securiryas a condition to obtaing such injunction.
17. Entire Ae:re:ement. This Agreemem, me exhibits hereto and the documents

referenced herein, constitute the entire agreemeni betu.1een the parties hereto, and there aro: no
represeritarions. warranties. covenants or obligations except as set fonh hereii. Ths

Agreement supersedes all prior or contemporaneous 'agreements. understandins. negotiations
and disi:ussioDS. written ot oral, of the panies hereto, relating to any tranaction contemplated

by this. Agreement. Notlung in ths Agreement is intended or shall be cODS~ed to confer upon
or to give any person other than the parties hereto any

rights or remedies under or by reason of

ùiis Agreement.
18. Recitals. Enumeration and Headine:s. The headings comained in this Agreement

are for convenience of reference only and are not..intended to have any substantive significance

in interpretig ùi Agr~ement. . '
authorized executive offcer of Licensor. ..

19_ Assignment- Licensee shall not assign any interest in ths Agreement whether
by merger. consolidation, operation of law or otherwise without the prior written consen of an

~~;:

lSlGNAWRES ON NEX PAGEl

.:-

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,f

IN WiTNESS WHEREOF, .

the pani:s hereto have extcuted ths Agreem::nt as of the

day and year first wrinen above.

¿
By 4& / Bmma:,on

Its: ~~
1

.:

~2.7~;;

"LICENSEE"

HACOCK-MTH BUIDER, Ile., an Arizona
corporation

BY~Iis:

HANcoeK-MTH COMMIES, INC., an Ariona
corporation

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7

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EXHIBIT 547

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Message

Page 1 of 1

Jon
"

.c....

From: Pidgeon, Steve
Sent: Tuesday, February 03, 2004 1 :26 PM

To: Jon A. titus
Subject: Rick Hancock

I just returned from the Super Bowl and will give Steve and John a nng to discuss.
Certainly, we don't want Rick and his family to starve, and are fine with him building homes, as long as he (and Greg) abide by their agreements, and the law, inducting trademark law. Toward this end, I am sure there are lots of other names that Rick could build urider-- Titus Homes perhaps?

Anyway, I appreciate the heads up, which I take as an entreaty to tr to work something out, so that's what I'll seek to do.
Go

Pats!

sdp
Steven D. Pidgeon Snell & Wilmer LLP One Arizona Center Phoenix, Arizona 85004 (602) 382-6252 (602) 382-6070 (fax) Email: spidgeon~swlaw.com
The information contained in this electronic mail message is confidential infoff1ation intended only for the use of

c

the individual or entity this message is not the intended recipient or the employee or agent responsible to named above, and may be privileged. Ifthe reader of deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying ofthis communication is strictly you have received this communication in error, please immediately notify us by telephone (602-382-6000), and delete the prohibited. If original message. Thank you.

("'Case 2:04-cv-00384-ROS 2/3/04 Document 614-2 Filed 09/19/2008 Page 31 of 34

EXHIBIT 548

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02/11/04 18 :4Q FAX 602 382 6070

SNELL & WILMR C

I4 002

r
.~ .

\

c.

. Snell & Wiler
L.L.E

l'OENIX AIlZNA
TUCSN. AlZONA

L4OFFCE

One Ad Ceer
Ph~ ArS50Q,220:z '(Em) 382Fa- (602) 3BU70

II CA
6ALT~a'r. \I

Ww.$law.r

Il OOLOlV

Sreven D. Pidgeon (602) 382,6252
spii;eQ(l1wlaw.cam

Febr 1 1, 2004

W VIAS NlAD

VI FACSIME
JonA. Titus
Titus, Brueckner &

Berr, P.e.

7373 North Scottsdae Road, Suite B-252
Scottsdae, Arzona 85253
Re: Supplemental Maters
Dear

Jon:
I have had a chance tota with John and Steve, and here's where they come out.
It was not so long ago that we al negotiated the sale of

Hancock Homes Communities to

Meritage, The purchase price was $11.4 milion above book value, plus an earn out, which to
date has added an additional $7.5 millon in purchase price to the deal That excess purchase

price relates largely to the goodwil associated with the names, Hancock Homes Communties

C~

and Hancock Homes. Moreover, since the purchase, Meritage has dollars promoting the naIes, al under the tutelage of that the "Hancock" name is the hear of

spent literaly milions of

Greg and Rick Hancock. And we all know

these maks.

licensee. Here, as the exclusive licensee of the name, Meritage has the absolute legal right to
Several cases might be intrctive to you and yom' client. Consider the cour in the HO)1

protect that goodwil. . '
Heater Co. V. Hoyt case, which said: .

The federal law entitled the Lanam Act was passed, expressly, to preclude interlopers from usuring the goodwill in a mak that was built up and is rightfuy used by its owner or

. . . one nmst use his own name honestly and not as a means - of pirating the

goodwil and reputation of a business rival; and where he cannot use hi own
name without inevitably repesentin hi goods as thöse of another he may be

enjoined from using his name in connection with hi business. . .
Hoyt Heater Co. V. Hoyt 68 CaL. App.2d 523,527 (1945).
Or the cour in another case: ", . . rAJ ma ha DO absolute fight to use his own name,

even honestly, as the nae of hi merchandise or hi business." John R. Thompson Co. v.

Holloway, 366 F.2d 108 (5th err., 1966)).
In fact, courts have held tht even when a fariJy member atempts to use the famy name on different goods or serices, use of the famly name must be carefully circumscribed.

('

E.&J. Gallo Winery v. Galo Catte Company, 967 F.2d 1280 (9th CiT. 1990). And, in our
141594
sii..ii &. Wilmer Ì6 3 memrr i,F "OJ MllNll. a leading asciatiotl ..f indepimdcm law fis.

..~_.

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02/11/04 18: 42 FAX 602 382 6070

SNELL & WILMER C

~003

- \.ot

or

c

Snell & Wilmer L.LP.
Jon

A. Titu
2

Febru81-Y 11, 2004
Page

sitution, Rick Hancock plans to enter into an identical industr, so the cours would
undoubtedly grant a fun prohibition on the use of the name, See Nina Ricci - v. E. T .F.
Enterprises,Inc., 889 F.2d 1070 (Fed. err, 1989).'

_In thi connection, it seems prett obvious that ''Hancock Famly Builders" is intended to

usurp the goodwil associated with Meritage's Hancock maks (with the clever,' but clear inference to be drawn from the word "Family" tht Greg is somehöw involved). Indeed, why else would Rick even choose a name with Hancock in it? Jon, based on what little I know of Rick, it cannot be tht he is so egotistical that he must include - his sume in the name of his

company. Thus, it can only be to take advantage of the goodwil that Meritage own and has
continued to build in the Hancock name.
An~ using another nae, unrelated to Hancock, would by no mean deprive him from
piisuig his profession as a home builder. Indeed, other

Hancock faly members have

surved quite nicely using sometIg otber th the famiy suame (ß& Camelot Homes). We would suggest, qute stongly, tht ifRick wantsto pursue the hoìnbuildlg business

c-

that he choose a nai tht won't be confuing with, appropriate the goodwil of, the Hancock . naes that Meritae paid a significant sum for ardwil continue to Gontrol for another several

year. When Meritage's license is up, as far as we are concered, Rick can use whatever name he chooses, as long as it is not confuingly simlar to the nane "Mertage" or any of its other
trademks or names. In the interi he shouldn't waste his tilne and money promotig a name
1
we will object to,

Ver trly yours,

SDP:ldlc

i Jon, for the record, but as you know, the fact that the ACC pentted you to mae a name reseration is

(-

completely and utterly irelevant to the legal issue involved. Take a look at the discla on thei .

website.
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