UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

MATCAL, INC., Plaintiff, v. WINGS OVER PROVIDENCE, LLC, ROBERT ZAMPANO, MAGGIE ZAMPANO and DOROTHY ZAMPANO Defendants. CIVIL ACTION NO. ______________

VERIFIED COMPLAINT FOR A TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION AND TO COMPEL ARBITRATION Plaintiff Matcal, Inc. (Matcal) avers for its Verified Complaint for a Temporary Restraining Order and/or Preliminary Injunction and to Compel Arbitration against defendants Wings Over Providence, LLC (WOP), Robert Zampano, Maggie Zampano and Dorothy Zampano as follows: NATURE OF THE ACTION 1. This action is brought pursuant to the Federal Trademark Act, 15 U.S.C. 1051 et

seq., to prevent WOP, a former Matcal franchisee, and its three individually bound principals and guarantors from continuing to use and dilute Matcals trademarks, trade dress, service marks and trade names, to enforce the terms of a non-competition agreement and to compel arbitration of Matcals underlying claims. PARTIES 2. Plaintiff Matcal, Inc. (Matcal) is a corporation organized and existing under the

laws of the Commonwealth of Massachusetts with its principal place of business at 245 Russell Street, Suite 23A, Hadley, MA 01035.

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-23. Defendant Wings Over Providence, LLC (WOP), on information and belief, is a

limited liability company organized and existing under the laws of the State of Rhode Island, with its principal place of business at 725 Hope Street Providence, Rhode Island 02906 (Approved Location). 4. WOP and Matcal are parties to a Development Agreement entered into on or about

July 21, 2008 (Development Agreement), a true and accurate copy of which is attached as Exhibit A. WOP and Matcal are also parties to a franchise agreement entered into as of June 25, 2009 (Franchise Agreement), a true and accurate copy of which is attached as Exhibit B. 5. Defendant Robert Zampano, on information and belief, is a member of WOP and a

citizen of the State of Connecticut. Mr. Zampano is also a personal guarantor of WOPs obligations under the Franchise Agreement and Development Agreement. 6. Defendant Maggie Zampano, on information and belief, is a citizen of the State of

Connecticut. Maggie Zampano is also a personal guarantor of WOPs obligations under the Development Agreement. 7. Defendant Dorothy Zampano, on information and belief, is the manager of WOP

and a citizen of the State of Connecticut. Dorothy Zampano is also a personal guarantor of WOPs obligations under the Franchise Agreement and Development Agreement. JURISDICTION AND VENUE 8. This case arises under an Act of Congress relating to trademarks, 15 U.S.C. 1051

et seq. Accordingly, the Court has original jurisdiction pursuant to 28 U.S.C. 1338. Under principles of supplemental jurisdiction, the Court also has jurisdiction of all claims against defendants arising solely under state law.

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-39. Venue is proper under 28 U.S.C. 1391 and 9 U.S.C. 4 because the parties have

agreed to arbitrate the underlying merits of their claims in Massachusetts. 10. This court has personal jurisdiction over defendants by virtue of their agreement to

arbitrate claims in Massachusetts. FACTS MATCAL AND THE MATCAL MARKS 11. Matcal is the developer and owner of the Wings Over restaurant franchise system.

Wings Over restaurants offer products and services related to the carry-out, delivery of and offer for sale to the public of, boneless chicken wings, bone-in chicken wings, jumbo wings, St. Louis style ribs, specialty fried and broiled chicken sandwiches, wraps, and hamburgers. 12. To promote and identify the Wings Over franchise system, Matcal has developed

and registered certain trademarks to identify both its restaurants and the distinctive products sold in the restaurants. 13. Matcals trademarks, service marks and logos (Matcal Marks) are on the

principal register of the United States Patent and Trademark Office and include the following: MARK WINGS OVER RED ALERT JET FUEL AFTERBURNER DC-10 THE CONCORDE THE ZEPPELIN PUDDLE JUMPER F-16 C-5 GALAXY REGISTRATION NUMBER 3065826 2869679 2869680 2869682 3023040 2869683 2869687 2869689 2869690 2869691 REGISTRATION DATE March 7, 2006 August 3, 2004 August 3, 2004 August 3, 2004 December 6, 2005 August 3, 2004 August 3, 2004 August 3, 2004 August 3, 2004 August 3, 2004

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-414. Matcal has the exclusive right to use and license the Matcal Marks and derivations

thereof, as well as the distinctive Matcal System, which provides a proprietary methodology for operating a Wings Over restaurant under the Wings Over name. Matcal has continuously used each of the Matcal Marks since the date of their registration. 15. Those registrations are in full force and effect, unrevoked, uncancelled, and

incontestable pursuant to 15 U.S.C. 1065. 16. Matcal has given notice to the public of the registration of its trademarks and

service marks as provided in 15 U.S.C. 1111. 17. 18. Matcal uses or has used the Matcal Marks as abbreviations of its brand name. Through its franchise system, Matcal markets, promotes and provides services to its

restaurant franchisees throughout the northeast. In order to identify the origin of their restaurant services, Matcal allows its franchisees to utilize the Matcal Marks. 19. Matcal has invested substantial effort over a long period of time, including the

expenditure of tens of thousands of dollars, to develop goodwill in its trade names and trademarks to cause consumers throughout the northeast to recognize the Matcal Marks as distinctly designating Wings Over restaurants as originating with Matcal. 20. The value of the goodwill developed in the Matcal Marks does not admit of precise

monetary calculation, but because Matcal is widely known as a provider of exceptional chicken wings restaurant services, the value of Matcals goodwill exceeds millions of dollars. MATCALS CONFIDENTIAL INFORMATION AND THE WINGS OVER SYSTEM 21. Through the expenditure of considerable time, skill, effort and money, Matcal has

developed a system for establishing and licensing distinctive, high quality restaurants serving the public under the Wings Over name, i.e., the Matcal System.

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-522. As part of the Matcal System, Matcal has developed significant amounts of

confidential information. Matcal Confidential Information includes, among other things: (1) methods and procedures relating to the development and operation of Wings Over restaurants; (2) secret recipes of chicken wings and ribs, menu analysis and methods of preparation of products; (3) methods, procedures and techniques for packing, marketing, selling and delivering products and services; (4) knowledge of test programs, concepts and results relating to new product offerings and marketing campaigns; and (5) sources for the purchase of food, beverages and other ingredients necessary to operate a restaurant. 23. Significant portions of Matcals Confidential Information are contained in its

Operations Manual, a copy of which is provided to every franchisee solely for use in connection with the operation of a Wings Over restaurant that is available only to Matcal franchisees and employees. 24. 25. Franchisees are permitted on-going access to Matcals Confidential Information. Matcal takes all reasonable methods to safeguard the secrecy of its Confidential

Information, including having all its franchisees execute a confidentiality agreement as part of their franchise agreement. 26. Access by a Matcal competitor to Matcals Confidential Information and methods

of doing business would put Matcal at a severe disadvantage in the marketplace and may jeopardize its ability to continue in business. THE PARTIES DEVELOPMENT AGREEMENT 27. On or about July 21, 2008, Matcal entered into a Development Agreement with

Robert Zampano, LLC (Development Agreement) for the development of Wings Over restaurants located in Rhode Island. On June 25, 2009, Robert Zampano, LLC, with Matcals approval, assigned its rights under the Development Agreement to WOP.

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-628. Pursuant to paragraph 8.2 of the Development Agreement, WOPs failure to

comply with or to perform any of the terms, conditions or obligations of . . . (2) any Franchise Agreement or any other agreement between [WOP] or any of its affiliates and Franchisor, its affiliates or subsidiaries . . . constitutes a default under the Development Agreement. 29. Paragraph 8.2 of the Development Agreement further provides that upon a default,

Matcal has the right to terminate the Development Agreement immediately, with no opportunity to cure, effective upon WOPs receipt of written notice. 30. Pursuant to paragraph 9.3 of the Development Agreement, for a period of two (2)

years following termination of the Development Agreement, WOP agreed not to directly or indirectly, for itself, or through, on behalf of, or in conjunction with any person or legal entity, own, maintain, operate, engage in, be employed by, provide assistance to, or have any interest in (as owner or otherwise) any business that: (i) offers, sells or manufactures products or services which are the same as or similar to the products and services offered by the Franchised Businesses under the System, including, but not limited to, providing boneless chicken wings, bone in chicken wings, and ribs; . . . . that is located within Rhode Island or fifteen miles of any other Matcal franchisees restaurant. 31. Pursuant to a Guarantee, Indemnification and Acknowledgment agreement

executed in connection with the Third Amendment to the Development Agreement, Robert Zampano, Maggie Zampano and Dorothy Zampano each agreed to be personally and individually bound by, among other things, the confidentiality, non-competition and arbitration provisions of the Development Agreement. THE PARTIES FRANCHISE AGREEMENT 32. Pursuant to the Development Agreement, on or about June 25, 2009, Matcal

entered into a Franchise Agreement with WOP (Franchise Agreement) for the operation of a

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-7Wings Over restaurant located at 725 Hope Street Providence, Rhode Island (Approved Location). 33. Pursuant to paragraph 2.1 of the Franchise Agreement, WOP was obligated to

operate the Wings Over restaurant for a five-year term, during which time WOP was permitted to use the Matcal Marks in association with the operation of the restaurant as part of Matcals franchise system. 34. Pursuant to paragraph 4.2 of the Franchise Agreement, WOP was required to pay a

monthly royalty fee equal to 4% of WOPs gross sales. Royalty payments were due and payable by the 15th day of each month for the preceding month. 35. Pursuant to paragraph 9.1 of the Franchise Agreement, Matcal provided to WOP a

copy of the Matcal Operations Manual. WOP agreed to treat the Operations Manual as confidential and not to copy, duplicate, record or otherwise reproduce the Operations Manual. 36. Pursuant to paragraph 15.3 of the Franchise Agreement, WOP had the right to

written notice of and at least 30 days to cure any default that did not permit for automatic termination of the Franchise Agreement. 37. Pursuant to paragraph 16 of the Franchise Agreement, upon termination of the

franchise WOP must, among other things, immediately cease operating its restaurant, cease using the Matcal Marks, cancel any assumed name registrations that contain Wings Over, and immediately pay all sums due and owing to Matcal. 38. Pursuant to paragraph 17.3 of the Franchise Agreement, for a period of two (2)

years following termination of the Franchise Agreement, WOP agreed to not directly or indirectly, for itself, or through, on behalf of, or in conjunction with any person or legal entity, own, maintain, operate, engage in, be employed by, provide assistance to, or have any interest in

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-8(as owner or otherwise) any business that: (i) offers, sells or manufactures products or services which are the same as or similar to the products and services offered by the Franchised Business under the System, including, but not limited to, providing boneless chicken wings, bone in chicken wings, and ribs; . . . . that is located within five miles of the county in which WOPs restaurant is located and/or within five miles of where any other Matcal franchisees restaurant is located. 39. Pursuant to paragraph 26.3 of the Franchise Agreement, the parties agreed to

resolve all their disputes relating to this Agreement, the rights and obligations of the parties hereto, or any other claims or causes of action relating to the making, interpretation, or performance of either party under this Agreement by arbitration in Boston, Massachusetts. 40. Pursuant to paragraph 26.7 of the Franchise Agreement, the parties agreed that

Matcal is entitled to obtain injunctive relief from a court prohibiting conduct that causes it loss or damage under the usual equity rules, notwithstanding the parties agreement to arbitrate the underlying merits of claims they have against each other. 41. Pursuant to paragraph 26.8 of the Franchise Agreement, WOP agreed to pay Matcal

for all damages, court costs, reasonable attorneys fees and other expenses Matcal incurs in enforcing its rights under the Franchise Agreement, including, but not limited to, obtaining injunctive relief. 42. Pursuant to Exhibit E to the Franchise Agreement, Robert Zampano and Dorothy

Zampano each agreed to be personally and individually bound by, among other things, the confidentiality, non-competition and arbitration provisions of the Franchise Agreement. WOPS DEFAULT AND TERMINATION 43. By letter dated November 4, 2010, a true copy of which is attached as Exhibit C,

Matcal notified WOP that it was in default. Specifically, WOP was past due in royalty obligations

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-9totaling $17,085.15 and was in violation of certain food quality and offering requirements. Pursuant to paragraphs 15.3.3 and 15.3.4 of the Franchise Agreement, WOP had thirty days to cure its defaults. 44. 45. WOP failed to cure the defaults specified in Nov. 4, 2010 default notice. By letter dated January 6, 2011, a true copy of which is attached as Exhibit D,

Matcal notified WOP that its franchise would terminate in sixty days time unless the still outstanding financial defaults (now totaling $23,309.58) were cured within ten days. 46. By separate letter dated January 6, 2011, a true copy of which is attached as

Exhibit E, Matcal notified WOP that Matcal was terminating the Development Agreement based on the Franchise Agreement defaults. 47. WOP failed to cure its monetary defaults within ten days of receiving the January

6, 2001 termination notice. Accordingly, on March 6, 2011 WOPs Matcal franchise terminated. 48. By letter dated January 19, 2011, a true copy of which is attached as Exhibit F,

Matcal confirmed that WOP had not cured the defaults, confirmed termination of the Franchise Agreement and Development Agreement and reminded WOP and its guarantors of their posttermination obligations under the Franchise Agreement and Development Agreement. 49. The termination of the Franchise Agreement precludes WOP, Robert Zampano and

Dorothy Zampano from any further use of the Matcal Marks. 50. The termination of the Franchise Agreement triggers WOP, Robert Zampano and

Dorothy Zampanos obligations under the non-competition covenants in the Franchise Agreement and Development Agreement. 51. The termination of the Franchise Agreement triggers Maggie Zampanos

obligations under the non-competition covenants in the Development Agreement.

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- 10 WOP CONTINUES TO OPERATE A WINGS OVER RESTAURANT USING THE MATCAL MARKS IN VIOLATION OF THE LANHAM ACT AND THE NON-COMPETITION AGREEMENT 52. Since termination of the Franchise Agreement and Development Agreement, WOP

has continuously used the Matcal Marks in connection with its operation of a restaurant at the Approved Location. 53. Upon information and belief, WOP continues to operate at the Approved Location

under the direction and control of Robert Zampano, Maggie Zampano and Dorothy Zampano. 54. Since termination of the Franchise Agreement, WOP has taken no steps whatsoever

to de-identify itself from Matcals Wings Over franchise system. 55. Since termination of the Franchise Agreement, WOP has continuously operated a

restaurant at the Approved Location that specializes in the sale of chicken wings that are identical or substantially similar to those sold in the Matcal franchise system. MATCAL DEMANDS ARBITRATION 56. On April 27, 2011, Matcal filed a demand for arbitration with JAMS in Boston

pursuant to paragraph 26.3 of the Franchise Agreement. 57. To date, defendants have not responded to the arbitration demand. COUNT I PRELIMINARY INJUNCTIVE RELIEF ENJOINING VIOLATION OF THE LANHAM ACT 58. Matcal repeats and makes a part hereof each and every allegation set forth in

paragraphs 1 through 57 of the Verified Complaint. 59. Section 32 of the Lanham Act, 15 U.S.C. 1114(1)(a), provides in pertinent part

that [a]ny person who shall, without the consent of the registrant use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection

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- 11 with which such use is likely to cause confusion, or to cause mistake, or to deceive . . . shall be liable in a civil action by the registrant . . . . 60. WOP has marketed and promoted and continues to market and promote its

restaurant business through the unauthorized use of the Matcal Marks, and such use has caused and is likely to continue to cause confusion or mistake among prospective or actual customers, in violation of Section 32 of the Lanham Act. 61. Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), provides in pertinent part

that [a]ny person who, on or in connection with any goods or services . . . uses in commerce any word, term, name, symbol . . . or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which is likely to cause confusion, or to cause mistake, or to deceive as to affiliation . . . or as to the origin, sponsorship, or approval of . . . goods [or] services . . . shall be liable in a civil action . . . . 62. The acts of WOP in marketing and promoting its restaurant at the Approved

Location, through and with the Matcal Marks, constitutes: (a) a false designation of origin; (b) a false and misleading description of fact; and (c) a false and misleading representation of fact; that has caused and is likely to continue to cause confusion, or to cause mistake or deception as to the affiliation of WOPs restaurant with Matcal, and to cause confusion, or to cause mistake or deception, to the effect that Matcal sponsors or approves of the restaurant that WOP operates at the Approved Location, all in violation of Section 43(a) of the Lanham Act. 63. Section 43(c) of the Lanham Act, 15 U.S.C. 1125(c), provides in pertinent part

that [t]he owner of a famous mark shall be entitled, subject to the principles of equity and upon

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- 12 such terms as the court deems reasonable, to an injunction against another persons commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark, and to obtain such other relief as is provided in this subsection. 64. WOPs use of the Matcal Marks in connection with goods and services at the

Approved Location, after the Matcal Marks became famous, has caused and will continue to cause dilution and disparagement of the distinctive quality of the Matcal Marks and has lessened and will continue to lessen the capacity of the Matcal Marks to identify and distinguish the goods and services of Matcal, all in violation of Section 43(c) of the Lanham Act. 65. WOPs on-going acts of infringement in violation of Sections 32, 43(a), and 43(c)

of the Lanham Act are malicious, fraudulent, willful, and deliberate. 66. WOPs on-going acts of infringement in violation of Sections 32, 43(a), and 43(c)

of the Lanham Act have inflicted and continue to inflict irreparable harm on Matcal. 67. 68. Matcal has no adequate remedy at law. No previous injunctive relief has been awarded with respect to this matter in this

case or any other case. WHEREFORE, pursuant to 15 U.S.C. 1114, and 1125(a) & (c), Matcal demands the issuance of a temporary restraining order and/or preliminary injunction enjoining: WOP, Robert Zampano, Maggie Zampano and Dorothy Zampano, their affiliates, subsidiaries, officers, agents, servants, employees and attorneys, and all those who act in concert or participation with them, from marketing or promoting their restaurant and other related businesses at the Approved Location or elsewhere, through and with the Matcal Marks;

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- 13 COUNT II PRELIMINARY INJUNCTIVE RELIEF ENJOINING BREACH OF FRANCHISE AGREEMENT NON-COMPETITION PROVISIONS 69. Matcal repeats and makes a part hereof each and every allegation contained in

paragraphs 1 through 68 of the Verified Complaint. 70. Matcal has invested significant amounts of time and money developing the Matcal

System and Confidential Information pertaining to the Matcal System. 71. Matcal has invested significant amounts of time and money developing goodwill

with its customers through the development of the Matcal System and Matcal Marks. 72. WOP, Robert Zampano and Dorothy Zampano were granted access to Matcals

goodwill and Confidential Information through their purchase of a Matcal franchise and recognized the value of Matcals Confidential Information and goodwill in the Franchise Agreement. 73. Pursuant to the Franchise Agreement, WOP, Robert Zampano and Dorothy

Zampano agreed to not interfere with, jeopardize or convert to their own benefit Matcals goodwill and Confidential Information following termination of the Franchise Agreement. Specifically, WOP, Robert Zampano and Dorothy Zampano agreed to not directly or indirectly, for itself, or through, on behalf of, or in conjunction with any person or legal entity, own, maintain, operate, engage in, be employed by, provide assistance to, or have any interest in (as owner or otherwise) any business that: (i) offers, sells or manufactures products or services which are the same as or similar to the products and services offered by the Franchised Business under the System, including, but not limited to, providing boneless chicken wings, bone in chicken wings, and ribs; . . . . that is located within five miles of the county in which WOPs restaurant is located and/or within five miles of where any other Matcal franchisees restaurant is located.

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- 14 74. WOP, Robert Zampano and Dorothy Zampano have breached and continue to

breach their post-termination non-competition obligations by operating a restaurant at the Approved Location that sells products that are the same as or similar to those offered in Wings Over franchised restaurants. 75. WOP, Robert Zampano and Dorothy Zampano agreed in the Franchise Agreement

that Matcal is entitled to obtain injunctive relief from a court prohibiting conduct that causes Matcal loss or damage under the usual equity rules notwithstanding the parties agreement to arbitrate the underlying merits of Matcals claims. 76. Matcal is suffering irreparable harm to its goodwill and Confidential Information

due to WOP, Robert Zampano and Dorothy Zampanos operation of a competing restaurant at the Approved Location. Such irreparable harm constitutes loss or damage under the usual equity rules that entitles a party to preliminary injunctive relief. WHEREFORE, Matcal demands the issuance of a temporary restraining order and/or preliminary injunction enjoining: WOP, Robert Zampano and Dorothy Zampano, their affiliates, subsidiaries, officers, agents, servants, employees and attorneys, and all those who act in concert or participation with them, from directly or indirectly, for themselves, or through, on behalf of, or in conjunction with any person or legal entity, own, maintain, operate, engage in, be employed by, provide assistance to, or have any interest in (as owner or otherwise) any business that: (i) offers, sells or manufactures products or services which are the same as or similar to the products and services offered by the Franchised Business under the System, including, but not limited to, providing boneless chicken wings, bone in chicken wings, and ribs that is located in Providence County

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- 15 Rhode Island, within a five mile radius of Providence County Rhode Island or within a five mile radius of any Matcal franchisee or restaurant. COUNT III PRELIMINARY INJUNCTIVE RELIEF ENJOINING BREACH OF DEVELOPMENT AGREEMENT NON-COMPETITION PROVISIONS 77. Matcal repeats and makes a part hereof each and every allegation contained in

paragraphs 1 through 76 of the Verified Complaint. 78. Matcal has invested significant amounts of time and money developing the Matcal

System and Confidential Information pertaining to the Matcal System. 79. Matcal has invested significant amounts of time and money developing goodwill

with its customers through the development of the Matcal System and Matcal Marks. 80. WOP, Robert Zampano, Maggie Zampano and Dorothy Zampano were granted

access to Matcals goodwill and Confidential Information through their purchase of development rights to the state of Rhode Island and recognized the value of Matcals Confidential Information and goodwill in the Development Agreement. 81. Pursuant to the Development Agreement, WOP, Robert Zampano, Maggie

Zampano and Dorothy Zampano agreed to not interfere with, jeopardize or convert to their own benefit Matcals goodwill and Confidential Information following termination of the Development Agreement. Specifically, WOP, Robert Zampano, Maggie Zampano and Dorothy Zampano agreed to not directly or indirectly, for itself, or through, on behalf of, or in conjunction with any person or legal entity, own, maintain, operate, engage in, be employed by, provide assistance to, or have any interest in (as owner or otherwise) any business that: (i) offers, sells or manufactures products or services which are the same as or similar to the products and services offered by the Franchised Business under the System, including, but not limited to, providing boneless chicken

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- 16 wings, bone in chicken wings, and ribs; . . . . that is located within Rhode Island or fifteen miles of any Matcal franchisee. 82. WOP, Robert Zampano, Maggie Zampano and Dorothy Zampano have breached

and continue to breach their post-termination non-competition obligations by operating a restaurant at the Approved Location that sells products that are the same as or similar to those offered in Wings Over franchised restaurants. 83. WOP, Robert Zampano, Maggie Zampano and Dorothy Zampano agreed in the

Development Agreement that Matcal is entitled to obtain injunctive relief from a court prohibiting conduct that causes Matcal loss or damage under the usual equity rules notwithstanding the parties agreement to arbitrate the underlying merits of Matcals claims. 84. Matcal is suffering irreparable harm to its goodwill and Confidential Information

due to WOP, Robert Zampano, Maggie Zampano and Dorothy Zampanos operation of a competing restaurant at the Approved Location. Such irreparable harm constitutes loss or damage under the usual equity rules that entitles a party to preliminary injunctive relief. WHEREFORE, Matcal demands the issuance of a temporary restraining order and/or preliminary injunction enjoining: WOP, Robert Zampano, Maggie Zampano and Dorothy Zampano, their affiliates, subsidiaries, officers, agents, servants, employees and attorneys, and all those who act in concert or participation with them, from directly or indirectly, for themselves, or through, on behalf of, or in conjunction with any person or legal entity, own, maintain, operate, engage in, be employed by, provide assistance to, or have any interest in (as owner or otherwise) any business that: (i) offers, sells or manufactures products or services which are the same as or similar to the products and services offered by the Franchised Business under the System, including, but not limited to,

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- 17 providing boneless chicken wings, bone in chicken wings, and ribs that is located in Rhode Island or within a fifteen mile radius of any Matcal franchisee or restaurant. COUNT IV COMPELLING ARBITRATION PURSUANT TO 9 U.S.C. 4 85. Matcal repeats and makes a part hereof each and every allegation contained in

paragraphs 1 through 84 of the Verified Complaint. 86. Paragraph 26.3 of the Franchise Agreement is an agreement between the parties to

arbitrate their disputes. 87. Paragraph 15.3 of the Development Agreement is an agreement between the parties

to arbitrate their disputes. 88. On April 27, 2011 Matcal filed a demand for arbitration with JAMS in Boston

pursuant to paragraph 26.3 of the Franchise Agreement and paragraph 15.3 of the Development Agreement. 89. Robert Zampano, Maggie Zampano and Dorothy Zampano agreed to the arbitration

provisions in the Franchise Agreement and Development Agreement through their personal guarantees of the respective agreements. 90. Matcals claims against defendants for unpaid royalties and other damages and

misuse of Matcals trademarks are subject to the parties arbitration agreements. 91. against them. WHEREFORE, pursuant to 9 U.S.C. 4, Matcal demands judgment in its favor and against WOP, Robert Zampano, Maggie Zampano and Dorothy Zampano ordering them to participate in the arbitration that Matcal has initiated, together with all other relief the court deems just and proper. Matcal is aggrieved by defendants failure to date to arbitrate Matcals claims

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- 18 COUNT V ATTORNEYS FEES AND COSTS 92. Matcal repeats and makes a part hereof each and every allegation contained in

paragraphs 1 through 91 of the Verified Complaint. 93. Pursuant to paragraph 26.8 of the Franchise Agreement and the personal guarantees

of Robert Zampano and Dorothy Zampano, WOP, Robert Zampano and Dorothy Zampano agreed to pay Matcal for all damages, court costs, reasonable attorneys fees and other expenses Matcal incurs in enforcing its rights under the Franchise Agreement, including, but not limited to, obtaining injunctive relief 94. Matcal has incurred and is continuing to incur attorneys fees and other expenses

enforcing its right to injunctive relief. WHEREFORE, Matcal demands judgment in its favor and against WOP, Robert Zampano and Dorothy Zampano for all attorneys fees and other expenses it incurs in enforcing its rights under the Franchise Agreement, together with interest, costs and other relief the court deems just and proper. MATCAL, INC. By its attorneys,

/s/ Gregg A. Rubenstein Gregg A. Rubenstein (BBO #639680) NIXON PEABODY LLP 100 Summer Street Boston, Massachusetts 02110 (617) 345-1000 Dated: April 28, 2011

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