- Private Equity
Late last month, H.I.G. Capital sued Audax Group over what they believe was financial misrepresentation in Audax's sale of its portfolio company Mobileum to H.I.G..
In response, Audax filed a countersuit of its own. Their principal claim: “H.I.G. promptly ran what was a high-performing business into the ground.” Then, in an attempt to pass off the blame, targeted Audax as their scapegoat.
Originally published in the November 12th edition of Transacted. Read our earlier coverage of H.I.G. Capital's complaint.
Rather than accept liability for the $250 million of damages H.I.G. says it’s entitled to, Audax wants restitution for the value destroyed from its own $100 million minority stake (roughly 24 percent ownership), rolled over at the time of sale.
Before hitting the fraud allegations, Audax begins its countersuit with an accusation that, nearly immediately post-close, H.I.G. launched a concerted effort to renegotiate the purchase price.
They say that H.I.G. attempted to materially alter the deal’s economics by weaponizing the purchase price adjustment — a standard post-close true-up to account for changes in working capital, cash, and indebtedness.
H.I.G. came to the table with a claim that it was owed more than $16 million, or nearly 7 percent of its contributed equity. Support for that claim was essentially non-existent, says Audax, though their filing did not elaborate. The final adjustment turned out to be just $500,000.
A second dispute related to payment of discretionary bonuses to Mobileum management. While the business failed to hit performance targets, H.I.G. opted to pay out anyway. A reasonable stance given the recent change of ownership and probable desire to prevent turnover.
What was unreasonable, according to Audax, was H.I.G.’s insistence that Audax pay the full bonus amount. They took the position, for reasons not outlined in the filing, that Audax should contribute additional capital beyond the pro rata share they would have effectively covered through their minority ownership, had Mobileum treated the payments as a normal operating expense.
The third prong of H.I.G.’s alleged renegotiation strategy related to escrow accounts, some of which held earnout balances from prior Mobileum add-ons completed under Audax ownership. Should the earnout targets be achieved, the escrow account would pay out the contingent portion of the earlier acquisition’s purchase price to the seller. But, if the earnout targets were missed, Audax says it was contractually entitled to take back the full escrowed amount.
They claim that H.I.G. instead demanded that the escrow balances be returned to Mobileum, even if their payout criteria weren’t met. Audax says it reached a seemingly strange compromise in which the firm agreed to lend a portion of the escrow account release to the increasingly cash-strapped Mobileum.
Audax’s take is that the purchase price renegotiations probably would have happened no matter what, but that H.I.G.’s lawsuit was directly related to its own post-close strategic blunders:
Unfortunately, soon after acquiring control of Mobileum, H.I.G. proceeded to spectacularly mismanage the business.AG MOBILE HOLDINGS, L.P. v. H.I.G. MOBILE, L.P. et al.
The countersuit calls out a host of questionable business decisions made in the months following H.I.G.’s assumption of ownership. Most of which, Audax says, were done without the proper consent of the Board (of which Audax held two seats).
Nearly immediately, H.I.G. is said to have forced Mobileum to raise prices, against the advice of management. Concurrently, they kicked off an initiative to simplify the business’ product portfolio, doing away with previously standard customizations and bespoke solutions provided to Mobileum’s enterprise clients.
Internally, H.I.G. led a reduction in force that impacted more than 80 customer-oriented personnel, concentrated within delivery and support functions.
Per Audax, the predictable outcome was a disastrous hit to client relationships, with Mobileum customers simultaneously suffering a loss of service and reduction in support, while being told they had to pay more for the pleasure.
The filing notes that, through the first half of 2023, revenue is down 25 percent year-over-year.
Reacting to the deteriorating situation, H.I.G. inserted itself further into Mobileum’s operations, including the institution of daily calls with management.
The firm also made the decision to redirect CEO Bobby Srinivasan to internal operational and analytical assignments, away from the client-facing role he’d occupied for the life of the company.
The move further hurt sales, says Audax, forcing H.I.G. to reverse course and send Srinivasan back out into the field, only to then again change their mind and bring him back in for a second time.
After the yo-yo-ing reassignments, H.I.G. made the decision to strip Srinivasan of his executive role and place him on paid leave.
His replacement is new Interim CEO Mike Salfity, a longtime H.I.G. operating partner, whose appointment rankled Audax: paraphrasing, why replace an industry veteran with a first-time CEO whose prior role was as a fintech product leader?
While this was happening, Mobileum’s senior ranks became a revolving door. According to Audax, H.I.G.’s “toxic working environment” drove out an add-on executive (the target’s CEO), Mobileum’s Head of European Sales, the company’s Chief Human Resources Officer, and a number of key senior engineers.
H.I.G. also showed the door to Audax-hired CFO Andrew Warner. His replacement then lasted less than a year, at which time H.I.G. brought on a third CFO.
Audax makes no qualms about its opposition to the most recent appointment, who, coming from a corporate development background, they say lacks the accounting and operational expertise required.
Mobileum’s team page currently lists Ripu Singh as CFO, though his own LinkedIn notes his position as Chief Transformation Officer. His extensive corporate development background lines up with the Audax complaint.
H.I.G.’s initial complaint centered in large part around a particular client, Kibott, which it said was a sham business created by Audax to pad revenue through the sale process.
Audax unsurprisingly disputes that claim, and, along with echoing many of the points covered in last week’s note, says H.I.G. managed to destroy a perfectly healthy client relationship.
Unhappy with payment terms and pushing to collect receivables, H.I.G. is said to have forced its way into Mobileum’s client touchpoints, coming over the top of its own management team:
On one call, the H.I.G. personnel aggressively interrogated the Kibott principals, effectively destroying the customer relationship. When Mobileum’s then-CFO sought to fly to Europe in an effort to salvage the multi-million dollar business deal, H.I.G. ordered him to cancel the meeting. H.I.G. then filed a lawsuit against Kibott in federal court. Kibott did not make further payments for Mobileum’s license and Mobileum lost the potential for expanding into this new customer space.AG MOBILE HOLDINGS, L.P. v. H.I.G. MOBILE, L.P. et al.
Audax says H.I.G. misunderstood the Kibott relationship, which, it says, was strategically sound and with a counterparty that had “substantial financial backing.”
H.I.G.’s suit outlined a “forensic investigation” it had completed, which, per its telling, uncovered the widespread financial fraud perpetrated by Audax.
Audax’s take is that H.I.G. blew through millions of dollars in professional fees on a bogus witch hunt that it cooked up as a diversion from its own failings.
They say the investigation’s only purpose was to support the current “Stalinist show trial.”
When suing its customer failed as a business strategy, H.I.G. ordered Mobileum to undertake costly and disruptive financial investigations, which wasted cash and ultimately went nowhere.AG MOBILE HOLDINGS, L.P. v. H.I.G. MOBILE, L.P. et al.
H.I.G.’s own legal filings provide some credence to that accusation. They acknowledge that, under their ownership, Mobileum maintained the same accounting and revenue recognition policies that it’s now calling fraudulent, and continued to engage Kibott, the business they now say is an Audax scam.
All of which, Audax says, is proof that there was no misrepresentation on their part.
Audax also took issue with H.I.G.’s structuring of the investigation as a Special Committee of Mobileum’s Board of Directors. The minority shareholder was excluded from the Special Committee proceedings, which, it says, was a clear violation of Mobileum’s Limited Partnership Agreement (LPA) that entitled the firm to a seat on every Board committee.
The Special Committee proceeded to turn over its findings to H.I.G.’s outside counsel. A maneuver, Audax says, that constituted a prohibited related party transaction under the terms of the LPA:
[H.I.G. oversaw] the establishment of a Special Committee intended solely to benefit the H.I.G. Defendants; the engagement of counsel purportedly representing the Special Committee, all expenses of which were paid for by the Partnership; and the production of documents, analysis, and the work product of the sham investigation to the H.I.G. Defendants and their separate counsel.AG MOBILE HOLDINGS, L.P. v. H.I.G. MOBILE, L.P. et al.
Audax, in effect, helped foot the bill to sue itself.
On Thursday, Bloomberg reported that a group of lenders to Mobileum has added Houlihan Lokey to its advisory team as scrutiny over the company’s financial reporting grows, citing unnamed sources close to the matter.
Houlihan joins the group’s earlier retention of Milbank LLP as legal counsel.
Financing for H.I.G.’s Mobileum acquisition included $380 million first-lien and $160 million second-lien term loans via a Jefferies-led arranger group. In June, Moody’s downgraded Matrix Parent, Inc. (dba Mobileum) to Caa1, citing a negative outlook due to “internal operational challenges.”
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