May 12, 2005
Mail Stop 0408
By U.S. Mail and facsimile to (760) 736-8906
Mr. James P. Kelley, II
President and Chief Executive Officer
Discovery Bancorp
338 Via Vera Cruz
San Marcos, CA 92078
Re: Discovery Bancorp
Amendment Number Two to Form S-4 filed May 10, 2005
File No. 333-122090
Dear Mr. Kelley:
We have reviewed your filing and have the following comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your
disclosure.
After reviewing this information, we may or may not raise
additional
comments.
The purpose of our review process is to assist you in your
compliance with the applicable disclosure requirements and to
enhance
the overall disclosure in your filing. We look forward to working
with you in these respects. We welcome any questions you may have
about our comments or any other aspect of our review. Feel free
to
call us at the telephone numbers listed at the end of this letter.
Introduction: Celtic Capital Corporation - page 5
1. In the third paragraph of this section on page 5, you state
that
"$6.7 million of the anticipated proceeds from the offering will
be
used to fund the acquisition of Celtic`s assets and partially
reduce
Celtic`s debt." Please break this number up to disclose how much
of
the $6.7 million will be used for that stated purpose and how much
will be used as a capital injection to fund lending. Please make
these changes throughout the registration statement where you
reference the $6.7 million.
Voting Securities - page 10
2. In response to comment 2, you have changed the Proxy card and
the
Notice to reflect the meeting can not be adjourned without a vote
of
shareholders. However, you have failed to reflect this in
paragraph
3 of this section which continues to grant the board discretionary
authority to adjourn the meeting.
Reasons for the Merger: Celtic Transaction - page 14
3. In the ultimate paragraph of this section, please provide an
affirmative statement that the bank will not be liable to Celtic
in
the event shareholder approval of the merger is not obtained.
Pro Forma Financial Information - pages 85-89
4. Please revise the third column of your pro forma balance sheets
to
include the Celtic historical balances as of December 31, 2004.
Your
pro forma adjustment column should give effect to items and
amounts
not purchased as part of the acquisition, consideration paid for
amounts purchased and any fair value adjustments resulting from
the
proposed transaction. The third and fourth columns of your
current
presentation commingle various adjustments, historical amounts and
are difficult for a reader to follow. Please revise accordingly.
5. You refer to a $450,000 fair market valuation adjustment in
footnote 7 for both balance sheet presentations. We are unclear
why
you have included this amount as a pro forma adjustment and not
reflected in the historical financial statements of Celtic. Loan
losses inherent in the portfolio should be recognized through a
periodic provision for loan losses in accordance with SFAS No. 5
and
114. It is not acceptable to recognize losses on loans that are
due
to concerns as to ultimate collectibility through a purchase
accounting adjustment. Please carefully review the guidance in
SAB
Topic 2:A:5 and SFAS No. 141, as applicable. Revise the
historical
financial statements of Celtic, the above pro forma financial
information and other ancillary disclosures or provide persuasive
evidence supporting why the above adjustment is appropriate.
6. Please revise your pro forma income statements to include a
column
for pro forma adjustments. For example, we note you have pro
forma
adjustments currently included in your historical financial
statement
column.
Opinions
7. Horgan, Rosen, Beckhman & Coren has given no opinion as to the
enforceability of the warrants you intend to issue. Please
provide
the appropriate opinion with regard to the warrants.
8. Please refile the tax opinion of Murray Falk under the
appropriate
exhibit number. In addition, please change the reference in Mr.
Falk`s consent to the appropriate exhibit number.
9. You can limit reliance on an opinion as to purpose, but not as
to
person. Please revise the tax opinion of Murray Falk to remove
any
implication that shareholders of the Bank may not rely upon the
opinion.
10. Either delete the first sentence of the penultimate paragraph
of
the tax opinion of Murray Falk or refile the opinion just before
requesting effectiveness.
Exhibits
11. Please file the warrant agreement as exhibit 4.1 and all other
appropriate exhibits that you have neglected to file.
Other
12. Include updated consents from the independent accountants in
your
next amendment.
13. Please review the document for internal consistency ensuring
all
changes are reflected throughout the document, including all
relevant
exhibits (i.e. the tax opinion, etc.) and ensure that the new
certifications are resubmitted.
14. Please note the updating requirements in Rule 3-12 of
Regulation
S-X.
Closing Comments
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested supplemental information.
Detailed cover letters greatly facilitate our review. Please
understand that we may have additional comments after reviewing
your
amendment and responses to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the company and its management are in
possession of all facts relating to a company`s disclosure, they
are
responsible for the accuracy and adequacy of the disclosures they
have made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert this action as defense in any
proceeding
initiated by the Commission or any person under the federal
securities laws of the United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in connection with our review of
your
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as a confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering
of the securities specified in the above registration statement.
We
will act on the request and, pursuant to delegated authority,
grant
acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
acceleration of a registration statement. Please allow adequate
time
after the filing of any amendment for further review before
submitting a request for acceleration. Please provide this
request
at least two business days in advance of the requested effective
date.
You may contact Paula Smith at (202) 551-3696 or John P.
Nolan,
Accounting Branch Chief, at (202) 551-3492 if you have questions
regarding comments on the financial statements and related
matters.
Please contact Kathryn McHale at (202) 551-3464 or me at (202)
551-
3419 with any other questions.
Sincerely,
Christian Windsor
Special Counsel
cc: S. Alan Rosen, Esq.
Horgan, Rosen, Beckham & Coren, LLP
23975 Park Sorrento, Suite 200
Calabasas, CA 91302