<PAGE> 1
As filed with the Securities and Exchange Commission on November __, 1997
Registration No. 33-
---------
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
HF BANCORP, INC.
(exact name of registrant as specified in its certificate of incorporation)
DELAWARE (state or other 6035 33-0576146
jurisdiction of incorporation (Primary Standard (IRS Employer
or organization) Classification Code Number) Identification No.)
445 E. FLORIDA AVENUE
HEMET, CALIFORNIA 92543
(909) 658-4411
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
AMENDED AND RESTATED
HF BANCORP, INC.
STOCK-BASED INCENTIVE PLAN
(Full Title of the Plan)
RICHARD S. CUPP COPIES TO:
PRESIDENT AND CHIEF EXECUTIVE OFFICER JOSEPH G. PASSAIC, JR., ESQUIRE
HF BANCORP, INC. MULDOON, MURPHY & FAUCETTE
445 E. FLORIDA AVENUE 5101 WISCONSIN AVENUE, N.W.
HEMET, CALIFORNIA 92543 WASHINGTON, DC 20016
(909) 658-4411 (202) 362-0840
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As
soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / X /
<TABLE>
<CAPTION>
=====================================================================================================
Title of each Class of Amount to be Proposed Purchase Estimated Aggregate Registration
Securities to be Registered Registered(1) Price Per Share(2) Offering Price Fee
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 150,000
$.01 par Value Shares (3) $15.625 $2,343,750 $710(3)
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</TABLE>
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Amended and Restated HF Bancorp, Inc. Stock-Based Incentive Plan (the
"Plan")as the result of a stock split, stock dividend or similar adjustment
of the outstanding Common Stock of HF Bancorp, Inc. pursuant to 17 C.F.R.
ss.230.416(a).
(2) Weighted average price determined by the market value of the Common Stock on
November 17, 1997 as determined by the average of the high and low prices
listed on the NASDAQ Stock Market as reported in the Wall Street Journal of
$15.625, for the 150,000 additional shares available under the Plan for
which options have not yet been granted.
(3) Represents the total increase in the amount of shares reserved for issuance
under the Plan. There are a total of 811,250 shares available for issuance
under the Plan, 661,250 of which were previously registered on May 2, 1996
in connection with which a filing fee of $2,274.00 was paid.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT") AND 17 C.F.R. SS.230.462.
Number of Pages 15
Exhibit Index begins on Page 10
1
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HF BANCORP, INC.
PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. The documents containing the information for the HF Bancorp, Inc.
(the "Company" or the "Registrant") Amended and Restated Stock-Based Incentive
Plan (the "Plan") required by Part I of the Registration Statement will be sent
or given to the participants in the Plan as specified by Rule 428(b)(1). The
Joint Prospectus relates to this Registration Statement as well as the
Registration Statement on form S-8 filed on May 2, 1996 with the Securities and
Exchange Commission (the "SEC"). Such document is not filed with the SEC either
as a part of this Registration Statement or as a prospectus or prospectus
supplement pursuant to Rule 424 in reliance on Rule 428.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the SEC are incorporated
by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1997, which includes the consolidated statements of financial condition
of the Company and subsidiary as of June 30, 1997 and 1996, and the related
consolidated statements of operations, stockholders' equity and cash flows for
the three years in the period ended June 30, 1997, together with the related
notes and the report of Deloitte & Touche LLP, independent certified public
accountants filed with the SEC on September 25, 1997 (File No. 0-25722).
(b) The Form 10-Q report for the quarter ended September 30, 1997, filed
with the SEC on November 12, 1997 (File No. 0-25722).
(c) The description of Registrant's Common Stock contained in Registrant's
Form 8-A (File No.0-25722), as filed with the SEC on March 21, 1995 pursuant to
Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange Act") and
Rule 12b-15 promulgated thereunder.
(d) All documents filed by the Registrant pursuant to Section 13(a) and
(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which deregisters all securities then
remaining unsold or which deregisters all securities then remaining unsold.
ANY STATEMENT CONTAINED IN THIS REGISTRATION STATEMENT, OR IN A DOCUMENT
INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE HEREIN, SHALL BE DEEMED
TO BE MODIFIED OR SUPERSEDED FOR PURPOSES OF THIS REGISTRATION STATEMENT TO THE
EXTENT THAT A STATEMENT CONTAINED HEREIN, OR IN ANY OTHER SUBSEQUENTLY FILED
DOCUMENT WHICH ALSO IS INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE
HEREIN, MODIFIES OR SUPERSEDES SUCH STATEMENT. ANY SUCH STATEMENT SO MODIFIED OR
SUPERSEDED SHALL NOT BE DEEMED, EXCEPT AS SO MODIFIED OR SUPERSEDED, TO
CONSTITUTE A PART OF THIS REGISTRATION STATEMENT.
ITEM 4. DESCRIPTION OF SECURITIES
The common stock to be offered pursuant to the Plan has been registered
pursuant to Section 12 of the Exchange Act. Accordingly, a description of the
common stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None
2
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The validity of the Common Stock offered hereby has been passed upon by
Muldoon, Murphy & Faucette, Washington, DC, for the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Directors and officers of the Registrant are indemnified and held harmless
against liability to the fullest extent permissible by the general corporation
law of Delaware as it currently exists or as it may be amended provided any such
amendment provides broader indemnification provisions than currently exists.
This indemnification applies to the Board of Directors who administer the Plan.
In accordance with the General Corporation Law of the State of Delaware
(being Chapter 1 of Title 8 of the Delaware Code), Articles 10 and 11 of the
Registrant's Certificate of Incorporation provide as follows:
TENTH:
A. Each person who was or is made a party or is threatened to be made a party to
or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a Director or an Officer of the
Corporation or is or was serving at the request of the Corporation as a
Director, Officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a Director, Officer,
employee or agent, or in any other capacity while serving as a Director,
Officer, employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than such law permitted the
Corporation to provide prior to such amendment), against all expense, liability
and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) reasonably incurred or suffered by
such indemnitee in connection therewith; provided, however, that, except as
provided in Section C hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
B. The right to indemnification conferred in Section A of this Article TENTH
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a Director or Officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, services to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section or otherwise. The rights to indemnification and to the advancement of
expenses conferred in Sections A and B of this Article TENTH shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to be a
Director, Officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
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C. If a claim under Section A or B of this Article TENTH is not paid in full by
the Corporation within sixty days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expenses of prosecuting or defending such suit. In: (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses under this
Article TENTH, or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses conferred in
this Article TENTH shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, the Corporation's Certificate
of Incorporation, Bylaws, agreement, vote of stockholders or Disinterested
Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect itself and
any Director, Officer, employee or agent of the Corporation or subsidiary or
Affiliate or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by the Board
of Directors, grant rights to indemnification and to the advancement of expenses
to any employee or agent of the Corporation to the fullest extent of the
provisions of this Article TENTH with respect to the indemnification and
advancement of expenses of Directors and Officers of the Corporation.
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ELEVENTH:
- --------
A Director of this Corporation shall not be personally liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
Director, except for liability: (i) for any breach of the Director's duty of
loyalty to the Corporation or its stockholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law; (iii) under Section 174 of the Delaware General Corporation Law; or (iv)
for any transaction from which the Director derived an improper personal
benefit. If the Delaware General Corporation Law is amended to authorize
corporate action further eliminating or limiting the personal liability of
Directors, then the liability of a Director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders of the
Corporation shall not adversely affect any right or protection of a Director of
the Corporation existing at the time of such repeal or modification.
The Registrant is also permitted to maintain directors' and officers'
liability insurance covering its directors and officers and has obtained a
directors' and officers' liability and corporation reimbursement policy which
(subject to certain limits and deductibles) (i) insures officers and directors
of the Registrant against loss arising from certain claims made against them by
reason of their being such directors or officers, and (ii) insures the
Registrant against loss which it may be required or permitted to pay as
indemnification due its directors or officers for certain claims.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Securities Act") may be permitted to directors, officers or
persons controlling the Registrant, the Registrant has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. LIST OF EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds generally to
Exhibit Table in Item 601 of Regulation S-K):
3.1 Certificate of Incorporation of the Registrant.1
3.2 Bylaws of the Registrant.2
5 Opinion of Muldoon, Murphy & Faucette, Washington, DC, as to the
legality of the Common Stock registered hereby.
10 Amended and Restated HF Bancorp, Inc. Stock-Based Incentive Plan3
23.1 Consent of Muldoon, Murphy & Faucette (contained in the opinion
included as Exhibit 5).
23.2 Independent Auditors' Consent.
- --------------------------
1 Incorporated herein by reference from Exhibit 3.1 of the Registrant's
Registration Statement on Form S-1 filed on March 14, 1995.
2 Incorporated herein by reference from Exhibit 3.2 of the Registrant's
Registration Statement on Form S-1 filed on March 14, 1995.
3 Incorporated herein by reference from the Proxy Statement of the
Registrant filed with the Commission on September 25, 1997.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
6
<PAGE> 7
(ii) To reflect in the Prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement unless the information required by (i)
and (ii) is contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference into this Registration
Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the Offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's or the Plan's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to trustees, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a trustee, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
trustee, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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CONFORMED
SIGNATURES
Pursuant to the requirements of the Securities Act, HF Bancorp, Inc.
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Hemet, State of California, on November 18, 1997.
HF BANCORP, INC.
By: /s/ J. Robert Eichinger
---------------------------------
J. Robert Eichinger
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ Richard S. Cupp President, Chief Executive November 18, 1997
- ---------------------- Officer (principal executive
Richard S. Cupp officer)
/s/ Gerald A. Agnes Executive Vice President November 18, 1997
- ----------------------
Gerald A. Agnes
/s/ Mark Andino Vice President and Treasurer November 18, 1997
- ---------------------- (principal financial and
Mark Andino accounting officer)
/s/ J. Robert Eichinger Chairman of the Board November 18, 1997
- -----------------------
J. Robert Eichinger
/s/ Leonard E. Searl
- ----------------------- Director November 18, 1997
Leonard E. Searl
/s/ Harold L. Fuller
- ----------------------- Director November 18, 1997
Harold L. Fuller
/s/ Dr. Robert K. Jabs
- ----------------------- Director November 18, 1997
Dr. Robert K. Jabs
<PAGE> 9
/s/ George P. Rutland
- ----------------------- Director November 18, 1997
George P. Rutland
/s/ Patricia A. Larson
- ----------------------- Director November 18, 1997
Patricia A. Larson
/s/ Norman M. Coulson
- ----------------------- Director November 18, 1997
Norman M. Coulson
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EXHIBIT INDEX
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<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
PAGE
EXHIBIT NO. DESCRIPTION METHOD OF FILING LOCATION
- -------------- ------------------ --------------------------------------------------- -----------
<S> <C> <C> <C>
3.1 Certificate of Incorporated herein by reference from Exhibit 3.1 --
Incorporation of the of the Registrant's Registration Statement on Form
Registrant S-1 filed with the SEC on March 15, 1995 and declared
effective on May 11, 1995.
3.2 Bylaws of the Incorporated herein by reference from Exhibit 3.2 --
Registrant of the Registrant's Registration
Statement on Form S-1 filed with the
SEC on March 15, 1995 and declared
effective on May 11, 1995.
5 Opinion of Muldoon, Filed herewith. 11
Murphy & Faucette
10 Amended and Restated Incorporated herein by reference from Exhibit A of --
HF Bancorp, Inc. the Registrant's Proxy Statement for its 1997
Stock-Based Incentive Annual Meeting of Stockholders held on October
Plan 28, 1997.
23.1 Consent of Counsel Contained in Exhibit 5 hereof. --
23.2 Independent Auditors' Filed herewith. 14
Consent
</TABLE>
<PAGE> 1
EXHIBIT 5.0 OPINION OF MULDOON, MURPHY & FAUCETTE RE: LEGALITY
<PAGE> 2
November 18, 1997
Board of Directors
HF Bancorp, Inc.
445 E. Florida Avenue
Hemet, California 92543-4244
Re: Amended and Restated HF Bancorp, Inc. Stock-Based Incentive Plan
Ladies and Gentlemen:
We have been requested by HF Bancorp, Inc. (the "Company") to issue a
legal opinion in connection with the registration under the Securities Act of
1933 on Form S-8 of 150,000 shares of the Company's Common Stock, $.01 par value
(the "Shares"), to be issued under the Amended and Restated HF Bancorp, Inc.
Stock-Based Incentive Plan (the "Plan").
We have made such legal and factual examinations and inquiries as we
deemed advisable for the purpose of rendering this opinion. In our examination,
we have assumed and have not verified (i) the genuineness of all signatures,
(ii) the authenticity of all documents submitted to us as originals, (iii) the
conformity with the originals of all documents supplied to us as copies, and
(iv) the accuracy and completeness of all corporate records and documents and of
all certificates and statements of fact, in each case given or made available to
us by the Company or its subsidiary, Hemet Federal Savings and Loan Association.
Based on the foregoing and limited in all respects to Delaware law, it is
our opinion that the Shares reserved under the Plan have been duly authorized
and upon payment for and the issuance of the Shares in the manner described in
the Plan, will be legally issued, fully paid and nonassessable.
The following provisions of the Certificate of Incorporation may not be
given effect by a court applying Delaware law, but in our opinion the failure to
give effect to such provisions will not affect the duly authorized, validly
issued, fully paid and nonassessable status of the Common Stock:
<PAGE> 2
Board of Directors
November 18, 1997
Page 2
(a) Subsections C.3 and C.6 of Article FOURTH and Section D of Article
EIGHTH, which grant the Board the authority to construe and apply the provisions
of those Articles, subsection C.4 of Article FOURTH, to the extent that
subsection obligates any person to provide to the Board the information such
subsection authorizes the Board to demand, and the provision of Section C.7 of
Article EIGHTH authorizing the Board to determine the Fair Market Value of
property offered or paid for the Company's stock by an Interested Stockholder,
in each case to the extent, if any, that a court applying Delaware law were to
impose equitable limitations upon such authority; and
(b) Article NINTH of the Certificate of Incorporation, which authorizes
the Board to consider the effect of any offer to acquire the Company on
constituencies other than stockholders in evaluating any such offer.
We hereby consent to the filing of this opinion as an exhibit to the
Company's Registration Statement on Form S-8, and we consent to the use of our
name under the heading "Interests of Named Experts and Counsel."
Sincerely,
/s/ MULDOON, MURPHY & FAUCETTE
<PAGE> 1
EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT
<PAGE> 2
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
HF Bancorp, Inc. on Form S-8 of our report dated August 8, 1997, appearing in
the Annual Report on Form 10-K of HF Bancorp, Inc. for the year ended June 30,
1997.
/s/ DELOITTE & TOUCHE LLP
Costa mesa, California
November 17, 1997
