OPINION AND ORDER The plaintiff, James Tonra, Ph.D., brings this action against the defendants, Kadmon Holdings, Inc. (“Kadmon” or “the company”), Harlan W. Waksal, M.D. (“Waksal”), and John Ryan, M.D., Ph.D. (“Ryan”) (collectively, “the defendants”). The plaintiff alleges that, by repeatedly failing to pay the plaintiff his annual bonus, the defendants committed breach of contract, breach of the implied covenant of good faith and fair dealing, and breach of New York Labor Law (“NYLL”) §193. The plaintiff also alleges that the defendants violated the whistleblower provisions of the NYLL, §§215 and 740, and the Sarbanes-Oxley Act (“SOX”) §806, 18 U.S.C. §1514A, by firing the plaintiff after the plaintiff expressed concerns that the company would not report negative test results for the company’s drug candidate, tesevatinib. The defendants move to dismiss the plaintiff’s Amended Complaint under Federal Rule of Civil Procedure 12(b) (6) for failure to state a claim upon which relief can be granted. For the reasons explained below, the defendants’ motion to dismiss is granted in part and denied in part. I. In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff’s favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.” Id. When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff’s possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). II. The following allegations are taken from the Amended Complaint and are accepted as true for purposes of this motion. A. In July 2011, the plaintiff began negotiating with the defendants about joining Kadmon as an employee. Am. Compl. 25. On July 25, 2011, after several weeks of negotiating the terms and conditions of the plaintiff’s employment, Kadmon sent the plaintiff a final employment agreement. Id. 26. The agreement contained a bonus provision, which read: [The plaintiff] will receive a guaranteed bonus equal to one third of [his] annual base salary. For calendar year 2011, this bonus will be subject to [the plaintiff's] performance. Subsequent to 2011, the bonus may be adjusted based on [the plaintiff's] performance as well as Company performance. Annual bonuses will be paid no later than March 15th following the year in which they are accrued. Kennedy Decl. Ex. A. (emphasis added). Around August 2011, the plaintiff signed the employment agreement and became Kadmon’s Vice President of Preclinical Pharmacology. Am. Compl. 30. The plaintiff’s responsibilities included advancing projects from the research stage of development to the clinical trial stage of development and “assuming primary responsibilities for enrollment, data analysis and interpretation and scientific interactions with investigators.” Id.
32-33. While employed at Kadmon, the plaintiff received only two bonuses, one in 2012 and .one in 2013. Id. 43. However, the plaintiff alleges that he was contractually entitled to bonuses for every year he worked between 2011 and 2016. Id.
