Full opinion text
OPINION AND ORDER LEISURE, District Judge. Defendants RPost International Limited, Zafar Kahn, Terry Tomkow, and Ken Barton (collectively “RPost”) move to dismiss this action brought by Spencer Trask Software and Information Services, LLC and Spencer Trask Ventures, Inc. (collectively “Spencer Trask”), pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, defendants’ motion to dismiss is granted in part and denied in part. On February 11, 2002, Spencer Trask filed its initial complaint in New York Supreme Court for, inter alia, breach of contract, promissory estoppel, unjust enrichment and breach of warranty. After RPost removed the action to this Court, the Court denied a motion for a temporary restraining order seeking to enjoin RPost’s Series C financing, principally on the ground that Spencer Trask had not shown irreparable harm. Defendants then moved to dismiss, or in the alternative, for summary judgment. Thereafter, on March 18, 2002, plaintiffs filed an Amended Complaint, adding claims for securities fraud and common law fraud. As a result, defendants withdrew their motion to dismiss in order to address the new issues raised in the plaintiffs’ Amended Complaint. Defendants then brought this motion to dismiss the plaintiffs’ Amended Complaint, and moved this Court for a stay of discovery during the pendency of their motion to dismiss. On April 8, 2002, the Court granted the latter portion of said motion and entered a stay of discovery pending disposition of the motion to dismiss. BACKGROUND On a motion to dismiss, the plaintiffs’ well-pleaded allegations in their Amended Complaint are assumed to be true. Rothman v. Gregor, 220 F.3d 81, 91 (2d Cir.2000). Therefore the relevant facts, as alleged by the plaintiffs in their Amended Complaint, are as follows. Spencer Trask is an experienced venture capital investor that provides financing for emerging companies, particularly in the technology sector, and in return, Spencer Trask generally receives company stock. Plaintiffs’ First Amended Complaint (“Am.Comp.”) ¶ 19. RPost is a start-up internet company which aims to provide an electronic mail service for sending “registered emails” with security similar to registered mail sent through traditional postal services. Id. ¶ 20. In July 2001, RPost circulated an offering memorandum (the “July Memorandum”) among investors, seeking investors to complete its Series B round of financing-a private placement of convertible debt of up to $2 million. The proposed terms for investment called for the Series B notes to convert into shares in RPost at a 50% discount to the closing price in RPost’s later Series C round of financing. The July Memorandum made numerous representations about the company: listing the “Directors and Advisors” of RPost and describing their backgrounds, and including in that group Marvin Runyon, a former Postmaster General of the United States. Id. ¶ 22. The July Memorandum also listed Brigadier General Richard W. Pryor (Ret.), a former President of WorldCom, as the “Interim CEO” of RPost, and included him in the list of people identified under a heading titled “Team—Founders and Leadership Team”. Id. ¶ 23. The July Memorandum made representations concerning RPost’s relationship with the United States Postal Service (USPS), stating that RPost offered registered e-mail “in partnership with the USPS,” and representing that their “partnership was on the cusp of completion.” Id. ¶ 25. Furthermore, the July Memorandum made representations concerning RPost’s capitalization, stating that the authorized capital stock of the company consisted of 120,000,000 “ordinary” shares, of which approximately 21,000,000 were issued and outstanding. Id. ¶ 27. On August 13, 2001, Kevin Kimberlin, Chairman of Spencer Trask & Co., and Danny Zottoli, Chief Executive Officer of Information Services, met with defendants Kahn and Barton, two of the three founders of RPost. Kahn explained that RPost was raising a “Series B” round of financing, but was in need of further financing to close out that round. Id. ¶ 30. Kahn represented that RPost expected to sign in 60 days a final operational contract with the USPS, which would give RPost the exclusive use of the USPS brand for the provision of USPS electronic registered mail. Id. Spencer Trask expressed its willingness to provide financing, but only if terms could be reached that ensured that Spencer Trask would have a sufficient stake in the company to justify the risk it would be taking. Id. ¶ 31. On August 22, 2001, the parties met again, and reached an agreement on terms for the investment by Spencer Trask (“August Agreement”). Id. ¶ 36. The proposed terms for the investment provided that: (1) Spencer Trask would provide RPost with $500,000 in Series B financing, subject only to Spencer Trask’s due-diligence review; (2) Information Services would purchase, subject to due diligence, 6% of the fully-diluted outstanding capital stock from each of the three founders for $1.8 million, with Spencer Trask having the right to purchase the shares in three separate tranches over an 18 month period; (3) Spencer Trask would raise or invest $1 million for RPost in its subsequent Series C round of financing provided that two conditions were met: (a) RPost did in fact enter into an exclusive contract with the USPS; and (b) that before March 1, 2002, RPost also raised $1 million of Series C financing from other investors at a pre-money valuation of $30 million or less; and (4) Spencer Trask agreed to make a non-binding commitment to use its best efforts to raise funds for RPost’s Series D round of financing. The overall result of the agreed structure was to give Spencer Trask the right to acquire over 20% of RPost stock. Kahn and Kim-berlin shook hands on the deal and Kim-berlin congratulated Kahn on becoming a partner with Spencer Trask. Id. ¶ 38. That same day, in response to a request by Spencer Trask, Kahn sent an e-mail representing that “[t]he total issued and outstanding shares in the company, RPost International Limited ... are 22,336,000.” Id. ¶40. Spencer Trask relied on this figure in calculating how many shares would be purchased from each founder in the August Agreement. Id. After Kimberlin and Kahn shook hands on the August Agreement, Kimberlin asked Zottoli to draw up the terms to which they had agreed. David Hochman, a Managing Director at Spencer Trask & Co., drew up four short letter agreements to document the deal; and Hochman and Zottoli then telephoned Kahn and walked him through each sentence reflected in the letter agreements. Kahn told them that the terms in the letters were satisfactory. Hochman then sent the draft letter agreements to Kahn via e-mail on August 23, 2001. These proposed letter agreements summarized the parties’ discussions regarding Spencer Trask’s purchase of the founders’ shares in RPost, provided for payment of $200,000 in cash by Spencer Trask “[o]n execution,” and concluded with the sentence, “We are prepared to move promptly to consummate this transaction following the execution of this letter.” Draft agreements, attached as Ex. B to Affidavit of Kevin B. Kimberlin (“Kimber-lin Aff.”) Over the next two months, RPost proposed some revisions to the terms of the August Agreement, some of which were material, but Spencer Trask did not accept the material changes. Am. Comp. ¶ 43. The parties never signed or executed any of the four letter agreements written by Hochman. RPost did not provide Spencer Trask with due-diligence materials until the second week of October, a full month after RPost had assured Spencer Trask that those materials would be sent, and those materials did not include several of the documents needed by Spencer Trask in order to complete their due diligence. In a telephone call on October 26, 2001, Kahn emphasized the urgency of closing Spencer Trask’s Series B investment due to the imminence of RPost’s signing an exclusive agreement with the USPS. Id. ¶48. On October 30, 2001, Kahn sent Spencer Trask a letter urging Spencer Trask to provide the Series B financing right away, stating that it was closing financing that week; and on November 1, 2001, Spencer Trask invested $500,000 in RPost’s Series B round of financing. In exchange, Spencer Trask received a subordinated promissory note (the “Promissory Note”) that was convertible into preferred shares of RPost, the amount of which would be determined by the Series C financing, and the parties executed a Subordinated Convertible Debt Agreement (the “Debt Agreement”) on November 1, 2001. Id. ¶ 50. In the October 30, 2001 letter, RPost represented that it had 9,624,000 “authorized options in stock option reserve”; but in the Debt Agreement signed on November 1, 2001, RPost represented that it had 3,630,000 authorized options in reserve. Id. On December 20, 2001, RPost sent Spencer Trask another offering memorandum, which was dated November 2001 (the “November Memorandum”). Like the July Memorandum, the November Memorandum made various representations concerning RPost’s management; its relationship with the USPS; and its capital structure. Am. Comp. ¶ 51. Despite Spencer Trask’s repeated reminders of the need to receive additional information from RPost in order to complete the due diligence needed in order to close the August Agreement, defendants delayed providing that information and scheduling interviews, such that the due diligence was only finalized on January 9, 2002. Id. ¶ 66. However, on January 15, 2002, when Kimberlin met with Khan and Barton and stated that Spencer Trask was ready to proceed to the final closing of the remaining phases of the August Agreement, Barton told Kimberlin that their circumstances had changed and that they “did not need” that deal anymore. Id. ¶ 67. In February 2002, Spencer Trask asked RPost a series of questions concerning its capitalization structure and corporate governance. Spencer Trask responded to those questions in a letter dated February 22, 2002, via its counsel Hill & Barlow, with the following information: (1) RPost had 21,645,000 shares of common stock issued and outstanding; (2) RPost had outstanding options exercisable for 686,000 shares of common stock; (3) RPost had reserved 9,564,000 additional shares under its option plan; (4) the three founders of the company-defendants Tomkow, Khan and Barton-were the only members of RPost’s board of directors; (5) RPost did not have an “Executive Committee”; (6) neither Mr. Runyon nor General Pryor were “current statutory officers” of RPost. Id. ¶ 69. In addition, the plaintiffs alleged that they learned information about the qualifications and background of Kahn and Barton that made RPost’s representations regarding these individuals in the July and November appear misleading. Id. ¶ 71. Plaintiffs continue to allege that as of March 12, 2002, RPost had still not finalized any agreement with the USPS. Id. ¶ 73. DISCUSSION A. Motion to Dismiss Standard The Court may grant a motion to dismiss only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Lipsky v. Commonwealth United Corp., 551 F.2d 887, 894-95 (2d Cir.1976). The Court must read the complaint generously and draw all reasonable inferences in favor of the plaintiff, accepting the complaint’s allegations as true. Conley, 355 U.S. at 46-46, 78 S.Ct. 99; Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976); Dubin v. E.F. Hutton Group, Inc. 695 F.Supp. 138 (S.D.N.Y.1988). Accordingly, the factual allegations set forth in the Amended Complaint do not constitute findings of fact by the Court, but rather are presumed to be true for the purpose of deciding the motion to dismiss. See Emergent Capital Inv. Mgmt., LLC v. Stonepath Group, Inc., 165 F.Supp.2d 615, 625 (S.D.N.Y.2001). Thus, “[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In deciding a motion under Rule 12(b)(6), the Court may consider only the facts stated on the face of the complaint, documents appended to the complaint or documents incorporated by reference in the complaint. Schnall v. Marine Midland Bank, 225 F.3d 263, 266 (2d Cir.2000). “[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991); Fed.R.Civ.P. 10(c). When a party introduces matters extraneous to the pleadings, the Court must convert the motion to dismiss into a motion for summary judgment or exclude certain matters from consideration. See Fonte v. Bd. of Managers of Cont’l Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988); Fed. R.Civ. P. 12(b). However, the Second Circuit has held that “when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,” the court may nevertheless take that document into consideration in deciding the defendants’ motion to dismiss, without converting the proceeding to one for summary judgment. Cortec Indus., 949 F.2d at 47-48; see also Int’l Audiotext Network, Inc. v. AT & T Co., 62 F.3d 69, 72 (2d Cir.1995). B. Claim I: Breach of Contract Spencer Trask asserts several claims seeking to enforce the alleged August Agreement with RPost: breach of contract, breach of implied contract, promissory estoppel, unjust enrichment, and breach of the duty of good faith and fair dealing. Defendants argue that all of Spencer Trask’s contract-based claims fail for two reasons: (1) the Amended Complaint and incorporated documents conclusively establish the absence of any claims as matter of law; and (2) the Statute of Frauds bars all of those claims. The Court will first address whether the Amended Complaint and the incorporated documents establish a claim upon which relief can be granted. Defendants contend that the facts as alleged in the Amended Complaint and the documents incorporated by reference into the complaint show, as a matter of law, that RPost did not manifest an intent to enter into a binding agreement in their conversations with Spencer Trask on August 22, 2001, and therefore, Spencer Trask and RPost did not enter into a binding agreement as result of their oral discussions and handshake on that date. Consequently, defendants contend that plaintiffs cannot state a claim for breach of contract. While plaintiffs assert that the parties did enter into a binding preliminary agreement in their conversation on August 22, 2001, they argue that the issue of whether or not the parties intended to be bound in their August Agreement, and consequently, whether the August Agreement constitutes an enforceable contract, cannot be determined as a matter of law at this early stage of the litigation. See Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss the First Amended Complaint (“P1.0pp.”) at 13. While the Court can make the determination of whether the parties intended to be bound in an alleged preliminary agreement on a motion to dismiss, courts are often reluctant to rule on the issue of intent to form a binding agreement in a judgment on the pleadings, and must be cautious in making such determinations. Advanced Marine Techs., 16 F.Supp.2d at 381 n. 27. In Advanced Marine Techs., the Court granted a 12(b)(6) motion to dismiss a breach of contract claim after concluding that the plaintiff could allege no set of facts to show that the defendants intended to be bound in their preliminary agreement. In that case, the Court disagreed with the plaintiffs interpretation of the Second Circuit’s language in Consarc Corp. v. Marine Midland Bank, 996 F.2d 568 (2d Cir.1993), suggesting that summary judgment and, by a parity of reasoning, a motion to dismiss, may never be granted on the issue of intention to be bound. The Court stated that the proper reading of the language in Consarc would merely indicate that “courts must be cautious in granting summary judgment, perhaps especially so where the issue is intent, but summary judgment nevertheless may be appropriate in such a case if there is no genuine issue of material fact for trial.” Advanced Marine Techs., 16 F.Supp.2d at 381 n. 27. However, in cases where the intent to be bound is not conclusively determinable based on the facts alleged in the complaint and the documents incorporated by reference, “the issue of whether and when the parties intended to be bound is a factual issue that should [be] submitted to the jury.” Int’l Minerals & Res., S.A. v. Pappas, 96 F.3d 586, 593 (2d Cir.1996). Under New York contract law, parties may enter into a contract orally, even though they contemplate later memorializing their agreement in writing. See Ciaramella v. Reader’s Digest Ass’n, 131 F.3d 320, 322 (2d Cir.1997). In such a case, the mere intention to commit the agreement to writing will not prevent contract formation prior to the execution of that writing. Consarc, 996 F.2d at 574 (“Simply because the parties contemplate memorializing their agreement in a formal document does not prevent their agreement from coming into effect before written documents are drawn up. That is, if the parties have settled on the contract’s substantial terms, a binding contract will have been created, even though they also intended to memorialize it in a writing.”) (citations omitted)); R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 74 (2d Cir.1984). If, however, either party com municates an intent not to be bound until he achieves a fully executed document, “no amount of negotiation or oral agreement to specific terms will result in the formation of a binding contract.” Winston v. Mediafare Entm’t Corp., 777 F.2d 78, 80 (2d Cir.1985) (citing R.G. Group, 751 F.2d at 74 (“Under New York law, if the parties do not intend to be bound by an agreement until it is in writing and signed, then there is no contract until that event occurs.”)). “It is the intent of the parties that will determine the time of contract formation.” Id. at 78. In general, “preliminary manifestations of assent that require further negotiation and further contracts do not create binding obligations.” Shann v. Dunk, 84 F.3d 73, 77 (2d Cir.1996). However, the Second Circuit has recognized that in some rare instances, if a preliminary agreement clearly manifests the intent of the parties, it can create a binding obligation. See id; Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 72 (2d Cir.1989). Noting that it is a rare instance in which a preliminary agreement clearly manifests such an intention as to create a binding obligation, Judge Pierre N. Leval, then a District Court judge, helpfully outlined two separate categories of such binding preliminary contracts. See Teachers Ins. & Annuity Ass’n of America v. Tribune Co., 670 F.Supp. 491, 497-99 (S.D.N.Y.1987). The first type is a fully binding preliminary agreement, which is created when the parties have agreed upon all essential terms, but agree to memorialize their agreement in a more formal document. See Adjustrite Sys., Inc. v. GAB Bus. Services, Inc., 145 F.3d 543, 548 (2d Cir.1998). “A binding preliminary agreement binds both sides to their ultimate contractual objective in recognition that, ‘despite the anticipation of further formalities’, a contract has been reached.” Id. (citing Tribune, 670 F.Supp. at 498). The second type of preliminary agreement, termed by Judge Leval as a “binding preliminary commitment,” is created when the parties agree on certain major terms but leave other terms open for negotiation, accepting “a mutual commitment to negotiate together in good faith in an effort to reach final agreement.” Tribune, 670 F.Supp. at 498. “In contrast to a fully binding preliminary agreement, a ‘binding preliminary commitment’ does not commit the parties to their ultimate contractual objective but rather to the obligation to negotiate the open issues in good faith in an attempt to reach the ... objective within the agreed framework.” See Adjustrite, 145 F.3d at 548. The key issue, in finding that the plaintiffs have stated a claim for either type of agreement, is whether the parties intended to be bound by that preliminary agreement. See Adjustrite, 145 F.3d at 548. In ascertaining whether the parties evinced this intention to be bound, the court must look to “the words and deeds [of the parties] which constitute objective signs in a given set of circumstances.” R.G. Group, 751 F.2d at 74. Subjective evidence of intent, however, is generally not considered. See Adjustrite, 145 F.3d at 548; Rule v. Brine, Inc., 85 F.3d 1002, 1010 (2d Cir.1996). Instead, “[w]hat matters are the parties’ expressed intentions, the words and deeds which constitute objective signs in a given set of circumstances.” R.G. Group, 751 F.2d at 74. The analysis must not put “disproportionate emphasis ... on any single act, phrase or other expression, but, instead, [should consider] the totality of all of these, given the attendant circumstances, the situation of the parties, and the objectives they were striving to attain.” Brown Bros. Elec. Contractors, Inc. v. Beam Constr. Corp., 41 N.Y.2d 397, 393 N.Y.S.2d 350, 352, 361 N.E.2d 999 (1977). Plaintiffs have alleged that the parties entered into a fully binding preliminary agreement in their oral agreement on August 22, 2001. Am. Comp. ¶ 2. In the alternative, plaintiffs argue that if the Court finds they have failed to state a claim that the parties entered into a fully binding preliminary agreement, the August Agreement represented a binding preliminary commitment between the parties, and as such that the defendants have breached their duty to negotiate in good faith under such a commitment. See PI. Opp. at 18. 1) August Agreement Is Not a Binding Preliminary Agreement The Court has identified four factors to be considered in determining whether parties to a preliminary agreement, which calls for the execution of a formal instrument, intended to be bound in the absence of such an executed final instrument. Adjustrite, 145 F.3d at 549. In Winston, the Court looked at the following four factors in determining whether the preliminary agreement between the parties represented a binding preliminary agreement: (1) whether the parties have expressly reserved the right not to be bound without a written contract; (2) whether there has been partial performance of the contract; (3) whether the parties have agreed to all terms of the alleged contract; and (4) whether the alleged agreement is the type that is usually committed to writing. See 111 F.2d at 80. This Court has also found the Winston factors to be instructive in determining whether a preliminary agreement should be considered binding as a preliminary commitment to negotiate in good faith, altering the factors considered only slightly and placing less of a focus on the existence of unresolved terms between the parties. See Tribune, 670 F.Supp. at 499-503. In the analysis of both these types of binding agreements, the Court has found the language of the agreements to be the most important factor in discerning the parties’ manifested intent. See id. at 499. In this case, that is a bit more difficult since the alleged agreement was an oral agreement and the only evidence we have of its language is the language of the draft agreements, which the plaintiffs allege embody the terms of the alleged oral agreement. See Am. Comp. ¶ 41. a) Express Reservation of Right Not to Be Bound Absent a Writing While there was not an express reservation of the right not to be bound in the draft Agreements, there was such a reservation in the July Memorandum, and there were several expressions of the mutual intent not to be bound prior to the execution of the draft agreements. See July Memorandum at 4; Draft agreements. The draft agreements, the terms of which were allegedly agreed to by both parties over the telephone after Hochman and Zottoli “walked Kahn through each sentence reflected in the agreements,” Am. Comp. ¶¶ 41, 42, were sent via e-mail to the defendants the day after the alleged oral agreement. Those agreements laid out the terms agreed to in the alleged oral contract, and concluded with the sentence, “We are prepared to move promptly to consummate this transaction following the execution of this letter.” Draft agreements (emphasis added). That is not the only reference to execution in these agreements, as the agreements include a requirement that Spencer Trask make a payment of $200,000 “[o]n execution.” Id. Plaintiffs do not allege that they paid this money. Lastly, all four draft agreements contained blank signature lines with an open agreement date: “Agreed, as of August _, 2001.” Id. These provisions of the draft agreements, each sentence of which the plaintiffs allege were agreed to by both parties, “appear to place importance on the formalities of execution,” thereby reflecting a mutual intent on the part of both parties not to be bound to the terms of the agreement until the agreement was executed. Winston, 777 F.2d at 82; Davidson Pipe Co., Inc. v. Laventhol & Horwath, 1986 WL 2201, *4 (S.D.N.Y. Feb. 11, 1986) (holding that similar provisions attach “great significance to the execution date” and may be viewed as “an impediment to forming a binding agreement prior to some formal time of execution” (quotations omitted)). Of those three provisions in the draft agreements, the critical language at the end of the agreements, indicating that the plaintiffs “were prepared to move promptly to consummate this transaction following the execution of this letter, ” is the strongest indication that the parties did not evince an intent to be bound prior to execution. See draft agreements (emphasis added); Reprosystem, B.V. v. SCM Corp, 121 F.2d 257, 262 (2d Cir.1984) (holding that a term stating the agreement would be effective “when executed” could conclusively establish that no binding force was intended prior to execution). This language is indistinguishable from terms that courts have found preclude a binding preliminary agreement as a matter of law. See R.G.Group, 751 F.2d at 76 (explicit wording of agreement declared that obligations would commence “when duly executed”); Davidson Pipe Co., 1986 WL 2201, at *4 (obligations started “[c]oncurrently with the execution and delivery of this Agreement”). Furthermore, the defendants did include an explicit reservation of their right not to be bound in the absence of a written agreement in the July Memorandum provided by RPost to Spencer Trask, which lay out the terms for deals involving investment in RPost’s Series B round of financing. See July Memorandum at 4. The plaintiffs reviewed the July Memorandum and, as alleged in the Amended Complaint, relied heavily on the representations therein. See Am. Comp. ¶¶29, 21-28, 91(a)-(e), (g)-(j). In that Memorandum, RPost states, “We may not sell the convertible debt or accept any offer to purchase the convertible debt until we have delivered to you and you have executed the agreement reflecting the definitive terms and conditions of the offering.” Id. at 4. Plaintiffs have alleged that them investment in the Series B financing was part of the August Agreement, therefore the provision of the July Memorandum, which applied to the sale or purchase of convertible debt for that financing and explicitly reserved the defendants’ right not to be bound absent a written agreement, is indicative of the defendants’ objective intent not to be bound to a sale or purchase of convertible debt in the absence of a written agreement. See ABC Trading Co. v. Westinghouse Electric Supply Co., 382 F.Supp. 600, 602 (E.D.N.Y.1974) (rejecting an alleged oral agreement because an earlier letter from one of the parties, written three and one-half months before the alleged oral agreement, had said, “If your client finds this proposal agreeable in principle, we can proceed to reduce it to a written agreement.”) The plaintiffs place much weight on the defendants’ admission that there was an “agreement on terms,” and the fact that Kimberlin and Khan shook hands on the oral agreement made in the August 22, 2001 meeting, and plaintiffs argue that such an agreement should establish the parties’ intention to be bound. However, such an agreement can only serve as an indication of the parties’ intention to be bound, and cannot, as plaintiffs contend, conclusively establish that the parties intended to be bound. See Tribune, 670 F.Supp. at 497 (“[Mjore is needed than agreement on each detail [to create a binding obligation. There must be] overall agreement ... to enter into a binding contract.”); Arcadian Phosphates, 884 F.2d at 72. Their alleged oral agreement and handshake must be considered with all the other words and deeds of the parties, identifiable from the facts alleged in the Amended Complaint and the incorporated documents, and which would constitute objective signs of their intent to be bound. See, e.g., R.G. Group, 751 F.2d at 76 (Court held that parties’ alleged handshake agreement on the deal was not sufficient to show a mutual intent to be bound in light of the reservation of that right in the parties’ other deeds and words); Ciaramella, 131 F.3d at 325 (finding statement “[w]e have a deal” was not an explicit waiver of an express signature requirement); Davidson Pipe Co., 1986 WL 2201, at *5 (finding an oral statement “we have a deal” to be insufficient to bind parties who have reserved right to be bound only by an executed contract). b) Partial Performance The second factor looks to whether one party has partially performed, and that performance has been accepted by the party disclaiming the contract. See R.G. Group, 751 F.2d at 76. Partial performance is a significant factor in determining the existence of a binding oral agreement. See Cleveland Wrecking Co. v. Hercules Constr. Corp., 23 F.Supp.2d 287, 296 (E.D.N.Y.1998); see also Viacom Int’l Inc. v. Tandem Prod., Inc., 368 F.Supp. 1264, 1270 (S.D.N.Y.1974), aff'd, 526 F.2d 593 (2d Cir.1975). Plaintiffs contend that there has been partial performance of the August Agreement: Spencer Trask by investing $500,000 in RPost’s Series B financing round and RPost by providing Spencer Trask with due diligence through January 2001. See PI. Opp. at 16. Partial performance requires some actual performance of the contract, such that the plaintiffs must have conferred something of value upon the defendants which the defendants accepted. Cleveland Wrecking Co., 23 F.Supp.2d at 296 (quoting P.A. Bergner & Co. v. Martinez, 823 F.Supp. 151, 157 (S.D.N.Y.1993)). While it is clear that the plaintiffs’ investment of $500,000 did confer a benefit upon the defendants, the defendants assert that that investment was part of the contract signed by the parties in the Debt Agreement and therefore not indicative of the plaintiffs’ performance of the August Agreement. Defendants argue that language in the Debt Agreement, stating that “This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof,” indicates that the plaintiffs’ Series B investment was not part of a package deal, and should not be seen as partial performance of the August Agreement. Debt Agreement ¶ 9(e); see Def. Mem. at 16. Plaintiffs assert that this language does not preclude the Series B investment from being part of a larger package deal, because the language merely indicates that the Debt Agreement was the entire agreement with respect to the “subject matter hereof-meaning the Series B round of financing that it governed. See PI. Opp. at 21. Accordingly, it is not appropriate for the Court to make a conclusive determination of whether or not the language in the Debt Agreement bars the plaintiffs’ investment from being seen as partial performance of the August Agreement at this early stage. Therefore, making all reasonable inferences in favor of the plaintiffs, the Court finds that the second factor slightly favors the plaintiffs. c) Agreement on All Terms Turning to the third factor, plaintiffs alleged that the parties reached an oral “agreement on terms,” and that RPost thereafter proposed material revisions to those terms. Am. Comp. ¶¶ 37, 43. While the Court must take as true the plaintiffs’ allegation that the parties reached an agreement on terms, it appears from further allegations in the Amended Complaint that the parties were still negotiating several of these material terms. See Am. Comp. ¶¶ 43^44. It seems clear from the negotiations that ensued that the plaintiffs’ alleged “agreement on terms” was not an agreement to all terms, and even drawing all reasonable inferences in favor of the plaintiffs, the Court cannot find that this factor weighs in favor of the plaintiffs. As the Second Circuit noted in Winston, “[t]he actual drafting of a written instrument will frequently reveal points of disagreement, ambiguity, or omission which must be worked out prior to execution. Details that are unnoticed or passed by in oral discussion will be pinned down when the understanding is reduced to writing.” 777 F.2d at 82 (citing R.G. Group, 751 F.2d at 75). In this case, as in Winston, the drafting process revealed several points of disagreement, and as such the Court cannot find that the parties were able to reach an agreement on all terms in the alleged oral agreement. See Am. Comp. ¶¶ 43, 44. d) Agreement Is Type Usually Committed To Writing The fourth and final factor is whether the August Agreement is the type that is usually committed to writing. The alleged oral agreement was a complex, multi-stage package deal whereby Spencer Trask would invest or raise at least $1.5 million in Series B and C financing, subject to extensive due diligence and to various preconditions and milestones for the Series C round; would have options to purchase $5.4 million worth of RPost founders’ stock at three separate points over an 18-month period; and would have the right of first refusal on a Series D round at some point in the future. See Memorandum in Support of Motion to Dismiss the First Amended Complaint (“Def.Mem.”) at 19; Am. Comp. ¶¶ 37-39. The Court agrees with the defendants that it “defies common sense that any sophisticated investor would ever expect to be able to agree to such a deal, or to be able to carry out and ever enforce such a deal, without a written contract.” Def. Memo at 19; Adjustrite, 145 F.3d at 551 (holding that the agreement was clearly of the type that would ordinarily be committed to writing “in view of the size of the transaction, the nature of the assets being purchased, and the length of the employment contracts”). Plaintiffs argue that contracts for the sale of securities are often made orally, pointing to the Supreme Court’s language in Wharf (Holdings) Ltd. v. United Int’l Holdings, Inc., 532 U.S. 588, 121 S.Ct. 1776, 149 L.Ed.2d 845 (2001), noting in sweeping rhetoric that “oral contracts for the sale of securities are sufficiently common that the Uniform Commercial Code [UCC] and statutes of fraud in every State now consider them enforceable.” Id. at 595, 121 S.Ct. 1776. Even drawing all reasonable inferences in favor of the plaintiffs, the Court does not find this consideration persuasive since it is not likely that those sufficiently common oral contracts for the sale of securities, to which the Supreme Court was referring, were intended to encompass such a complex transaction. While the plaintiffs may be able to establish that the August Agreement should be exempted from the Statute of Frauds under the UCC § 8-113 (the revised provision of the UCC allowing oral contracts for sales of securities to be enforceable), that would provide no more support for their argument that it was not a type of contract that normally would have been committed to writing. On the other hand, RPost’s requirement, as stated in the July Memorandum, that any offer to purchase the convertible debt in the Series B round of financing, only one part of the alleged oral agreement, would need to be in writing, does serve as an indication that the alleged oral agreement is one that would have been committed to writing. See July Memorandum at 4. Therefore, even viewing all the facts alleged in the Amended Complaint and incorporated documents in a light most favorable to the plaintiffs, the Court finds that this factor weighs in favor of the defendants. In sum, three of the four factors strongly point to the conclusion that the parties did not intend to be bound to the terms of the August Agreement in the absence of a written document. Even drawing all reasonable inferences from the partial performance alleged by the plaintiffs, the Court finds that that factor alone is insufficient to state a claim for relief. See Arcadian, 884 F.2d at 72-73 (affirming grant of summary judgment dismissing breach of contract action even though there was “considerable partial performance,” where language of the memorandum showed that the parties did not intend to be bound until final contract was signed); Adjustrite, 145 F.3d at 551 (same). Therefore, based on the facts alleged in the Amended Complaint and the incorporated documents, the Court finds that the plaintiffs have failed to state a claim that the parties intended the August Agreement to be a binding preliminary agreement. 2) August Agreement May Represent a Binding Preliminary Commitment In considering whether the August Agreement resulted in the second type of binding preliminary agreement-“a binding preliminary commitment”-the Court looks to the following factors examined by Judge Leval in determining whether the parties evinced an intent to be bound: (1) the language of the agreement; (2) the context of the negotiations; (3) the existence of open terms; (4) any partial performance; and (5) the necessity of putting the agreement in final form, as indicated by the customary form of such transactions. See Id. at 499-503. In seeking to determine whether such a preliminary binding commitment was established, “a court’s task is, once again, to determine the intentions of the parties at the time of their entry into the understanding, as well as their manifestations to one another by which the understanding was reached.” Id. at 499. Just as for the first type of binding agreement, the parties must manifest a mutual intent to be bound in order for the Court to find that a binding preliminary commitment has been made. See id., 670 F.Supp. at 498; Dunk, 84 F.3d at 82. In this analysis, as in the analysis above, courts have found the first factor, the language of the agreement, to be the most important. Tribune, 670 F.Supp. at 499. Again, in this case, since the alleged agreement was an oral agreement, the only evidence we have of its language is the language of the draft agreements. In Tribune, the Court found the language of the agreement at issue in that case, which reserved rights of approval and established conditions, such as the preparation and execution of documents satisfactory to both parties, could be part of a binding preliminary commitment; the Court found that such terms were “by no means incompatible with [the] intention to be bound” to such a commitment. Id. at 500 (holding that making the agreement contingent on board approval and upon the preparation, execution and delivery of documents, did not override and nullify the acknowledgment that a binding preliminary commitment had been made on stated terms, and therefore both parties were obligated to negotiate in good faith to resolve the open terms). The Court also stated that the reasoning of the courts in R.G. Group and Reprosystem, where the courts found that a term stating that the agreement would be effective “when executed” conclusively established that no binding force was intended prior to execution, was of “diminishing force ... where the inquiry is not whether the parties had concluded their deal, but only whether they had entered into a binding preliminary commitment which required further steps.” Id. at 500. While the Court does find from the language of the draft agreements and the July Memorandum that the parties did not manifest a mutual intent to be bound by the terms of the August Agreement, as was alleged by the plaintiffs, the Court cannot conclusively determine, from the language of these documents, that the parties did not manifest an intent to be bound “to negotiate together in good faith in an effort to reach final agreement within the scope” of the terms laid out in the August Agreement. See id. at 498. Therefore this factor is neutral, weighing neither in favor of the plaintiffs nor the defendants. Looking to the second factor enunciated in Tribune -the context of the negotiations-the one factor not considered in the analysis for the first type of binding agreement, the Court looks to where the parties alleged oral agreement fell within the course of the negotiations. The plaintiffs allege that the parties had at least two meetings and several conversations regarding the deal prior to their oral agreement on August 22, 2001. See Am. Comp. ¶¶ 30, 31, 35. Therefore, the Court cannot say that the negotiations were at such a preliminary stage that the parties conclusively could have evinced no intent to be bound to a preliminary commitment. Cf. Cleveland Wrecking Co., 23 F.Supp.2d at 298 (finding no binding preliminary commitment between the parties, in part because agreement was made at their first formal negotiating session, and therefore the context of the negotiations suggested the preliminary nature of the agreement). Accordingly, drawing all reasonable inferences in favor of the plaintiffs, this factor weighs slightly in favor of the plaintiffs. In most cases where the courts have found a binding preliminary commitment, the parties have purposely left open terms to be negotiated in good faith. See, e.g., Tribune, 670 F.Supp. at 499; P.A. Bergner & Co., 823 F.Supp. at 158. In this case, the plaintiffs have not alleged that the parties purposely left terms open to be negotiated in good faith, however, it is clear from the facts alleged both that the parties did not reach an agreement on all terms in the August Agreement and that the parties did engage in some negotiations about those open terms after they reached their alleged oral agreement. Am. Comp. ¶¶ 43, 44. While courts have found the existence of open terms to indicate the parties’ intention not to be bound to the terms of a preliminary agreement, courts have found that factor to play a less significant role in the determination of whether the parties evinced an intent to be bound to a negotiate those open terms in good faith. See Tribune, 670 F.Supp. at 499 (“To consider the existence of open terms to be as fatal would be to rule, in effect, that binding preliminary commitments cannot be enforced. That is not the law.”) For the reasons stated in the analysis above, the partial performance factor weighs slightly in favor of the plaintiffs, and the final factor-whether the agreement is one that would have normally been committed to writing-weighs in favor of the defendants. While the defendants have a strong argument that the parties evinced no intention to be bound, either to the terms of the agreement or to a duty to negotiate that agreement in good faith, drawing all reasonable inferences in favor of the plaintiffs, the Court must deny defendants’ motion to dismiss plaintiffs’ claim alleging a breach of contract, and allow the plaintiffs to submit evidence in support their claim that such a binding preliminary commitment resulted from the parties’ alleged oral agreement on August 22, 2001. C. Claim II: Breach of Implied Contract The law recognizes two types of implied contracts, those which are implied by the facts and those which are implied by the law. A contract implied from the facts is found where the consent of the parties to the agreement may be inferred from the acts of the parties and all of the surrounding circumstances. Tjoa v. Julia Butterfield Mem’l Hosp., 205 A.D.2d 526, 612 N.Y.S.2d 676 (2d Dep’t 1994). Furthermore, “a contract cannot be implied-in-fact where the facts are inconsistent with its existence ... or against the intention or understanding of the parties.” Tjoa, 612 N.Y.S.2d at 677. An implied-in-fact contract arises in the absence of an express agreement, and is based on the conduct of the parties from which a fact-finder may infer the existence and terms of a contract. See AEB & Assocs. Design Group, Inc. v. Tonka Corp., 853 F.Supp. 724, 731 (S.D.N.Y.1994). Since the Court cannot conclusively determine that the parties did not make a binding preliminary commitment in their alleged oral agreement, the Court cannot dismiss the plaintiffs’ claim for breach of implied contract. Moreover, whether certain conduct gives rise to an implied contract is a question of fact, to be determined under the circumstances of the case. See id.; see also Radio Today, Inc. v. Westwood One, Inc., 684 F.Supp. 68, 71 (S.D.N.Y.1988). The relevant inquiry is whether the party to be charged “has conducted himself in such a manner that his assent may fairly be inferred.” Miller v. Schloss, 218 N.Y. 400, 407, 113 N.E. 337 (1916); accord Tjoa, 612 N.Y.S.2d at 677. As such, it would not be appropriate to dismiss the plaintiffs’ claim for breach of implied contract at this point. D. Claim III: Promissory Estoppel Under New York law, promissory estoppel has three elements: “ ‘a clear and unambiguous promise; a reasonable and foreseeable reliance by the party to whom the promise is made; and injury sustained by the party asserting the estop-pel by reason of his reliance.’ ” Esquire Radio & Elecs., Inc. v. Montgomery Ward & Co., 804 F.2d 787, 793 (2d Cir.1986) (quoting Restatement (Second) of Contracts § 90 (1981)). The plaintiffs have alleged that: 1) the defendants made a clear and unambiguous promise to allow Spencer Trask to participate in the overall deal structure, in which Spencer Trask would invest in the Series B financings and purchase a portion of the founders’ shares; 2) the plaintiffs reasonably and foreseeably relied on those promises by investing $500,000 in the company’s Series B financing; and 3) as a result of that reliance, Spencer Trask has been injured in three ways. See Am. Comp. ¶¶ 84-86. While the defendants have pointed to evidence that indicates that the plaintiffs’ $500,000 investment in the Series B financing did not represent reasonable reliance on the defendants’ alleged promise, pointing to the portion of the Debt Agreement which provided that it was the “entire agreement among the parties hereto with respect to the subject matter hereof,” Debt Agreement at ¶ 9(e), such evidence cannot conclusively establish at this stage the issue of whether or not the $500,000 constituted reasonable reliance. See supra pp. 443-444. Therefore, plaintiffs have adequately pled all three elements of promissory es-toppel, and the defendants’ motion to dismiss the plaintiffs’ claim for promissory estoppel is denied. E. Claim VIII: Unjust Enrichment Under New York law, “a plaintiff seeking an equitable recovery based on unjust enrichment must first show that a benefit was conferred upon the defendant, and then show that as between the two parties, enrichment of the defendant was unjust.” Reprosystem, 727 F.2d at 263 (2d Cir.1984) (citing Indyk v. Habib Bank Ltd., 694 F.2d 54, 57 (2d Cir.1982)); Dolmetta v. Uintah Nat’l Corp., 712 F.2d 15, 20 (2d Cir.1983) (“To recover on a theory of unjust enrichment, a plaintiff must prove that the defendant was enriched, that such enrichment was at plaintiffs expense, and that the circumstances were such that in equity and good conscience the defendant should return the money or property to the plaintiff.”) Plaintiffs have alleged that allowing the defendants to retain the benefit of the $500,000 investment and the value of the plaintiffs’ reputation and good name as an investor, without honoring the balance of their alleged August agreement would be unjust. Am. Comp. ¶ 120. Since plaintiffs have adequately pled that a benefit was conferred upon the defendants and that the defendants’ enrichment was unjust and at the plaintiffs’ expense, the defendants’ motion to dismiss the unjust enrichment claim is denied. F. Claim IX: Breach of Duty of Good Faith and Fair Dealing The covenant of good faith and fair dealing, implied in every contract under New York law, “includes ‘an implied undertaking on the part of each party that he will not intentionally and purposely do anything to prevent the other party from carrying out the agreement on his part.’ ” Carvel Corp. v. Diversified Mgmt. Group, Inc., 930 F.2d 228, 230 (2d Cir.1991) (quoting Grad v. Roberts, 14 N.Y.2d 70, 75, 248 N.Y.S.2d 633, 198 N.E.2d 26 (1964)). Since this Court is not willing to dismiss the plaintiffs’ claim for breach of contract at this juncture, the Court also denies the defendants’ motion to dismiss the plaintiffs’ claim for breach of duty of good faith and fair dealing. G. Statute of Frauds Considerations The defendants argue that enforcement of the August Agreement is barred under the Statute of Frauds, § 5-701(a)(l) of New York’s General Obligations Law. “Under New York law, parties are free to enter into a binding contract without memorializing their agreement in a fully executed document.” Winston, 777 F.2d at 80. However, New York law requires certain agreements to be in writing. See N.Y. Gen. Oblig. § 5-701. While the Court finds that the August Agreement is not one that could have been performed within a year and therefore would be subject to the writing requirement of the Statute of Frauds, the Court does not grant the defendants’ motion to dismiss the breach of contract claim based on the Statute of Frauds, since the Court finds that, drawing all reasonable inferences in favor of the plaintiffs, plaintiffs could establish that the August Agreement should be deemed a “sale of securities” under Section 8-113 of the Uniform Commercial Code (“UCC”), and therefore exempted from the writing requirement of the Statute of Frauds even though it cannot be performed within a year. Section 5-701(a)(l) has been read narrowly so as to bar oral agreements when there is no “possibility in fact and law of full performance within one year.” Ohanian v. Avis Rent A Car Sys., Inc., 779 F.2d 101, 106 (2d Cir.1985) (“The one-year provision has been held not to preclude an oral contract unless there is ‘not ... the slightest possibility that it can be fully performed within one year.’ ”) (citing 2 Corbin on Contracts § 444, at 535; War ner v. Texas & Pac. Ry., 164 U.S. 418, 434, 17 S.Ct. 147, 41 L.Ed. 495 (1896) (“The question is not what the probable, or expected, or actual performance of the contract was; but whether the contract, according to the reasonable interpretation of its terms, required that it should not be performed within the year.”))- RPost contends that since a key provision of the August Agreement was Spencer Trask’s right to purchase shares from the founders over a set eighteen month period, the contract was incapable of being performed within a year, and therefore the Statute of Frauds bars Spencer Trask’s breach of contract claim as a matter of law. See Def. Memo at 22. Spencer Trask argues that the August Agreement was capable of being performed within a year since Spencer Trask had the right, but not necessarily the obligation, to purchase each of the three rounds of the founders’ shares; “thus, Spencer Trask could have elected to make only the first two purchases and forego the third, thereby completing the deal in less than a year.” PI. Opp. at 25. However, just because Spencer Trask could have chosen not to exert their right to purchase shares in the third round, its choice would not have extinguished RPost’s obligation to sell those shares. “The touchstone of an inquiry under Section 5-701(a)(l) is ... whether the contract by its terms is incapable of performance within one year, because it places indefinite liability on the defendant.” Day v. Meyer, 2000 WL 1357499, *5 (S.D.N.Y. Sept. 19, 2000) (Court held that the alleged contract was capable of performance within one year because defendants’ liability could have concluded within one year if performance was achieved within one year.). In the case at hand, RPost’s liability under the August Agreement would not have ended upon Spencer Trask’s election to forego a third round. Under the August Agreement, RPost still would have been under a duty to sell the founders’ shares in the third round if Spencer Trask had wanted to purchase them, and therefore the alleged contract was not capable of being performed within a year. See Zupan v. Blumberg, 2 N.Y.2d 547, 161 N.Y.S.2d 428, 429, 141 N.E.2d 819 (1957); Martocci v. Greater New York Brewery, 301 N.Y. 57, 63, 92 N.E.2d 887 (1950) (holding that the contract fell within the Statute of Frauds since, under the terms of the contract, the contractual relationship between the parties would continue beyond a year, “even though the continuing liability to which defendant is subject is merely a contingent one. The endurance of defendant’s liability is the deciding factor.”). Since the August Agreement, as alleged by the plaintiffs, was not capable of being performed within a year, it would be subject to the Statute of Frauds. Furthermore, the Court dismisses Spencer Trask’s argument that the August Agreement would be exempt from the Statute of Frauds under the doctrine of partial performance. Section 5-701(a) does not expressly provide a part performance exception, and the New York Court of Appeals has firmly stated that there is no such exception. See Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc. v. Aegis Group PLC, 93 N.Y.2d 229, 689 N.Y.S.2d 674, 677 n. 1, 711 N.E.2d 953 (1999) (stating that Court had “not ... adopted [the] proposition” that there is a “judicially-created part performance exception to [General Obligations Law] § 5-701”); Valentino v. Davis, 270 A.D.2d 635, 703 N.Y.S.2d 609, 611 (3d Dep’t 2000) (holding that “the doctrine of part performance cannot save contracts governed by General Obligations Law § 5-701”); see also Belotz v. Jefferies & Co., Inc., 213 F.3d 625, 2000 WL 665564 (2d Cir.2000) (unpublished) (holding that the doctrine of part performance is “of no aid to the appellant” since the New York Court of Appeals has stated that there is no such exception to Section 5-701). Moreover, even assuming arguendo that there is a part performance exception to Section 5-701, the plaintiffs’ actions must be “unequivocally referable” to the alleged oral agreement as to warrant enforcing it. Anostario v. Vicinanzo, 59 N.Y.2d 662, 664, 463 N.Y.S.2d 409, 450 N.E.2d 215 (1983) (noting that, in reference to a contract subject to the Statute of Frauds under Gen. Oblig. § 5-703, the doctrine of part performance applies only where plaintiffs actions are “ ‘unintelligible or at least extraordinary,’ explainable only with reference to the oral agreement” (citation and internal quotation omitted)). In this case, even viewing the facts in the light most favorable to the plaintiffs, Spencer Trask’s investment in the Series B round of financing and RPost’s due diligence cannot be deemed “unequivocally referable” to the August Agreement, since it is explainable as a result of the November agreement. See Debt Agreement. However, Spencer Trask argues that even if the August Agreement falls within the Statute of Frauds, it would be exempted from the Statute under Section 8-113 of the UCC, adopted by New York in 1997. Section 8-113 provides, in pertinent part: [A] contract or modification of a contract for the sale or purchase of a security is enforceable whether or not there is a writing signed or record authenticated by a party against whom enforcement is sought, even if the contract or modification is not capable of performance within one year of its making. N.Y.U.C.C. § 8-113(a). This provision replaces former UCC § 8-319, which did subject a contract for the sale of securities to the Statute of Frauds. Spencer Trask argues that the August Agreement between Spencer Trask and RPost plainly called for the purchase of securities by Spencer Trask since Spencer Trask would have the right under that Agreement to purchase the founders’ shares in three tranches. See PI. Opp. at 25; Am. Comp. ¶ 33. RPost contends that the alleged agreement to sell a certain percentage of the founders’ shares to Spencer Trask should not be deemed a “sale of security” within the meaning of § 8-113, since § 8-113 was not intended to encompass the type of complex agreement alleged in this case. See Def. Memo at 23. RPost argues that the Official Comment to N.Y.U.C.C. § 8-113 indicates that § 8-113 was intended only to cover “simple stock purchases and sales and allow for electronic transactions such as ‘day trading.’ ” Def. Mem. at 23. However, in light of the dearth of New York case law defining the parameters of § 8-113, the Court finds that it would be better equipped to address the issue of whether the August Agreement should be deemed “a sale or purchase of a security” under UCC § 8-113, and therefore exempted from the writing requirement of the Statute of Frauds, with the additional information available at the summary judgment stage. Moreover, since the plaintiffs are entitled to offer evidence that their breach of contract claim is not barred by the Statute of Frauds, they are also entitled to offer evidence that their equitable claims for implied contract, promissory estoppel, unjust enrichment, and breach of covenant of good faith and fair dealing are not barred by the Statute of Frauds. H. Fraud Claims The plaintiff asserts four claims based on alleged fraud: (1) violations of Section 10(b) and Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) (15 U.S.C. § 78(b) and 78t(a)) and S.E.C. Rule 10b-5 promulgated thereunder; (2) common law fraud; (3) equitable estoppel based on alleged fraud; and (4) and breach of warranty. While each of these fraud claims have their own legal elements, each claim requires, that the plaintiffs allege and ultimately prove that the defendants made false representations, that the plaintiffs reasonably relied on those false representations, and that that reliance caused injury to the plaintiffs. In Re Time Warner Inc. Secs. Litig., 9 F.3d 259, 264 (2d Cir.1993) (§ 10(b) and Rule 10b-5); Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76, 668 N.E.2d 1370 (1996) (common law fraud); Chadirjian v. Kanian, 123 A.D.2d 596, 506 N.Y.S.2d 880, 882 (2d Dep’t 1986) (equitable estoppel); CBS Inc. v. Ziff-Davis Pub. Co., 75 N.Y.2d 496, 554 N.Y.S.2d 449, 453, 553 N.E.2d 997 (1990) (breach of warranty). Defendants argue that plaintiffs have failed to state a claim for fraud since they cannot show reasonable reliance or actual injury. See Def. Mem. at 27. While the Court finds that the determination of reasonable reliance is largely an issue of fact, inappropriate for resolution at this early stage, the Court also finds that the plaintiffs have not adequately established the pleading requirement of loss causation, essential under the federal securities and common law fraud claims, and have therefore failed to make an adequate allegation of injury under those claims. The plaintiffs have based their fraud-related claims on four categories of alleged misstatements and omissions made by the defendants: 1) statements about the RPost’s relationship and the status of negotiations with the USP