As filed with the Securities and Exchange Commission on April 30, 2015

Registration No. 333-   ______________         
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 

ACTIVE POWER, INC.
(Exact name of registrant as specified in its charter) 

Delaware	74-2961657	
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)	

2128 W. Braker Lane, BK12
Austin, Texas 78758
(512) 836-6464
(Address of Principal Executive Offices) (Zip Code) 

Active Power, Inc.
Amended and Restated 2010 Equity Incentive Plan
(Full title of the plan) 

Scott J. Depta
General Counsel and Secretary
ACTIVE POWER, INC.
2128 W. Braker Lane, BK12
Austin, Texas 78758
(Name and address of agent for service)
(512) 836-6464
(Telephone number, including area code, of agent for service)

Copy to:
Milam F. Newby, Esq.
Vinson & Elkins LLP
2801 Via Fortuna, Suite 100
Austin, TX 78746-7568

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. 

 	Large accelerated filer o	Accelerated filer  þ	
 	Non-accelerated filer   o (Do not check if a smaller reporting company)	Smaller reporting company  o	

CALCULATION OF REGISTRATION FEE

Title of securities to be registered	 	Amount to be registered (1)	 	Proposed maximum offering price per share (2)	 	Proposed maximum aggregate offering price (2)	 	Amount of
registration
fee	
Common Stock, $0.001 par value	 	3,000,000	 	$2.36	 	$7,080,000	 	$822.70	

(1)	This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the 2010 Equity Incentive Plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration that results in an increase in the number of the Registrant’s outstanding shares of Common Stock.	
 	 	
(2)	Estimated pursuant to Rule 457(c) and (h) solely for the purpose of calculating the amount of the registration fee, based on the average of the high and low sales price of the Common Stock on April 24, 2015, as reported on the Nasdaq Stock Market.	

EXPLANATORY NOTE

STATEMENT UNDER GENERAL INSTRUCTION E — REGISTRATION OF ADDITIONAL SECURITIES

This registration statement on Form S-8 is being filed for the purpose of registering an additional 3,000,000 shares of Active Power, Inc.’s Common Stock to be issued pursuant to the Registrant’s 2010 Equity Incentive Plan, as amended (the “Plan”). The contents of the registrant’s registration statements on Form S-8 filed with the Securities and Exchange Commission (the "Commission") on May 21, 2010 (File No. 333-167005) and on June 6, 2012 (File No. 333-181948) relating to the Plan (together, the “Filed S-8s”), including periodic filings updating or amending the contents of the Filed S-8s, are incorporated by reference into this registration statement pursuant to General Instruction E of Form S-8. The reports the registrant has most recently filed with the SEC are listed below in Part II, Item 3.

PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT

 	 	
Item 3.	Incorporation of Documents by Reference.	

The following documents filed by the Registrant with the Commission are hereby incorporated by reference into this Registration Statement:

(a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed with the Commission on February 27, 2015 pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);

(b) The Registrant’s Quarterly Report on Form 10-Q filed with the Commission on April 30, 2015;

(c) The Registrant’s Current Reports on Form 8-K filed with the Commission on March 18, 2015 and April 28, 2015; and

(d) The description of the Registrant's common stock contained in the Registrant’s Registration Statement No. 000-30939 on Form 8-A12G filed with the Commission on June 30, 2000, including any amendment or report filed for the purpose of updating such description.

All documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 	 	
Item 5.	Interests of Named Experts and Counsel.	

None.

 	 	
Item 6.	Indemnification of Directors and Officers.	
 
The registrant’s amended and restated certificate of incorporation contains provisions that eliminate, to the fullest extent permitted by the General Corporation Law of the State of Delaware, the personal liability of directors and officers for monetary damages for breach of their fiduciary duties as a director or officer. The registrant’s amended and restated certificate of incorporation and amended and restated bylaws provide that the registrant shall indemnify its directors and officers and may indemnify its employees and other agents to the fullest extent permitted by the General Corporation Law of the State of Delaware.
 
Sections 145 and 102(b)(7) of the General Corporation Law of the State of Delaware provide that a corporation may indemnify any person made a party to an action by reason of the fact that he or she was a director, executive officer, employee or agent of the corporation or is or was serving at the request of the corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action if the person acted in good faith and in a manner the person reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of an action by or in right of the corporation, no indemnification may generally be made in respect of any claim as to which such person is adjudged to be liable to the corporation.

The registrant has entered into indemnification agreements with its directors and executive officers, in addition to the indemnification provided for in its amended and restated certificate of incorporation and amended and restated bylaws, and intends to enter into indemnification agreements with any new directors and executive officers in the future.

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The registrant has purchased and intends to maintain insurance on behalf of any person who is or was a director or officer of the registrant against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
 
See also the undertakings set out in our response to Item 9 herein.

 	 	
Item 8.	Exhibits.	

The Exhibits listed on the accompanying Index to Exhibits are filed as part of, or incorporated by reference into, this Registration Statement.

 	 	
Item 9.	Undertakings.	

 	
 	 	
 	(a)   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;

(ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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 end 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% 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 this registration statement or any material change to such information in this registration statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.
 
(2) That, for the purpose of determining any liability under the Securities Act, 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.

(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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.
 
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, 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 SEC such indemnification is against public policy as expressed in the Securities 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 director, officer or controlling person of the registrant in the successful defense of any action,

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suit or proceeding) is asserted by such director, 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 Securities Act and will be governed by the final adjudication of such issue.
  
SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant 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 Austin, State of Texas, on April 30, 2015.

 	 	
ACTIVE POWER, INC.	
 	 	
By:	/s/ James A. Powers	
 	James A. Powers	
 	Chief Financial Officer and Vice President of Finance	
 
 Power of Attorney

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby severally constitutes and appoints Mark A. Ascolese and James A. Powers, and each of them, attorneys-in-fact, and agents each with the power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.

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Signature	 	Title	 	Date	
 	 	 	 	 	
/s/ Mark A. Ascolese	 	President and Chief Executive Officer, Director	 	April 30, 2015	
Mark A. Ascolese	 	(principal executive officer)	 	 	
 	 	 	 	 	
/s/ James A. Powers	 	Chief Financial Officer and Vice President of Finance	 	April 30, 2015	
James A. Powers	 	(principal financial and accounting officer)	 	 	
 	 	 	 	 	
/s/ Ake Almgren	 	Chairman of the Board, Director	 	April 30, 2015	
Ake Almgren	 	 	 	 	
 	 	 	 	 	
/s/ Stephen J. Clearman	 	Director	 	April 30, 2015	
Stephen J. Clearman	 	 	 	 	
 	 	 	 	 	
/s/ James E. deVenny III	 	Director	 	April 30, 2015	
James E. deVenny III	 	 	 	 	
 	 	 	 	 	
/s/ Robert S. Greenberg	 	Director	 	April 30, 2015	
Robert S. Greenberg	 	 	 	 	
 	 	 	 	 	
/s/ Peter Gross	 	Director	 	April 30, 2015	
Peter Gross	 	 	 	 	
 	 	 	 	 	
/s/ T. Patrick Kelly	 	Director	 	April 30, 2015	
T. Patrick Kelly	 	 	 	 	

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ACTIVE POWER, INC.

REGISTRATION STATEMENT ON FORM S-8

INDEX TO EXHIBITS

 	 	 	
Exhibit
No.	 	 
Description	
4.1	 	Restated Certificate of Incorporation of Active Power, Inc., as amended (filed as Exhibit 3.1 to Active Power Inc.’s Quarterly Report on Form 10-Q filed on August 1, 2014).	
 	 	 	
4.2	 	Second Amended and Restated Bylaws of Active Power, Inc., as amended (filed as Exhibit 3.2 to Active Power Inc.'s Quarterly Report on Form 10-Q filed on May 1, 2014).	
 	 	 	
   5.1*	 	Opinion of counsel as to legality of securities being registered.	
 	 	 	
23.1*	 	Consent of Grant Thornton, LLP, Independent Registered Public Accounting Firm.	
 	 	 	
23.2*	 	Consent of counsel (contained in Exhibit 5.1).	
 	 	 	
24.1*	 	Power of Attorney (see page II-4).	
 	 	 	
99.1	 	Active Power, Inc. Amended and Restated 2010 Equity Incentive Plan (filed as Exhibit 10.1 to Active Power Inc.’s Current Report on Form 8-K filed on April 28, 2015).	
_____________________________________________________________________________________________

 	 	
*	Filed herewith.	

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 	EXHIBIT 5.1	

April 30, 2015
Active Power, Inc.
2128 W. Braker Lane, BK 12
Austin, Texas  78578
 	 	
Re:	Registration Statement on Form S‑8	
Ladies and Gentlemen:
We have acted as counsel for Active Power, Inc., a Delaware corporation (the “ Company ”), in connection with the Company’s registration under the Securities Act of 1933, as amended (the “ Act ”), of the offer and sale of up to an aggregate of 3,000,000 shares of the Company’s common stock, $0.001 par value per share (the “ Common Stock ”), pursuant to the Company’s registration statement on Form S‑8 (the “ Registration Statement ”) to be filed with the Securities and Exchange Commission on April 30, 2015, which such shares of Common Stock may be issued from time to time in accordance with the terms of the Active Power Inc. 2010 Equity Incentive Plan, as amended from time to time (the “ Plan ”).
In reaching the opinions set forth herein, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of such documents and records of the Company and such statutes, regulations and other instruments as we deemed necessary or advisable for purposes of this opinion, including (i) the Registration Statement, (ii) certain resolutions adopted by the board of directors of the Company or the compensation committee thereof, (iii) the Plan, and (iv) such other certificates, instruments, and documents as we have considered necessary for purposes of this opinion letter. As to any facts material to our opinions, we have made no independent investigation or verification of such facts and have relied, to the extent that we deem such reliance proper, upon representations of public officials and officers or other representatives of the Company.
We have assumed (i) the legal capacity of all natural persons, (ii) the genuineness of all signatures, (iii) the authority of all persons signing all documents submitted to us on behalf of the parties to such documents, (iv) the authenticity of all documents submitted to us as originals, (v) the conformity to authentic original documents of all documents submitted to us as copies, (vi) that all information contained in all documents reviewed by us is true,

 	
 	 	
Vinson & Elkins LLP Attorneys at Law
Abu Dhabi Austin Beijing Dallas Dubai Hong Kong Houston London
Moscow New York Palo Alto Riyadh San Francisco Tokyo Washington	2801 Via Fortuna, Suite 100
Austin, TX 78746-7568
Tel +1.512.542.8400  Fax +1.512.542.8612  www.velaw.com	

 	
 	 	
 	Active Power, Inc.   April 30, 2015 Page 2

                                        

correct and complete and (vii) that the Common Stock will be issued in accordance with the terms of the Plan.

Based on the foregoing and subject to the limitations set forth herein, and having due regard for the legal considerations we deem relevant, we are of the opinion that the Common Stock has been duly authorized and, when shares of Common Stock are issued by the Company in accordance with the terms of the Plan and the instruments executed pursuant to the Plan, as applicable, which govern the awards to which shares of Common Stock relate, the shares of Common Stock will be validly issued, fully paid and non-assessable.
This opinion is limited in all respects to the Delaware General Corporation Law. We express no opinion as to any other law or any matter other than as expressly set forth above, and no opinion on any other matter may be inferred or implied herefrom. The opinions expressed herein are rendered as of the date hereof and we expressly disclaim any obligation to update this letter or advise you of any change in any matter after the date hereof.
This opinion letter may be filed as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,

/s/ Vinson & Elkins L.L.P.

EXHIBIT 23.1
 
Consent of Independent Registered Public Accounting Firm
 
We have issued our reports dated March 2, 2015 with respect to the consolidated financial statements and the internal control over financial reporting included in the Annual Report on Form 10-K for the year ended December 31, 2014 of Active Power, Inc., which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference in the Registration Statement of the aforementioned reports.
 
/s/ Grant Thornton LLP
 
Dallas, Texas
April 30, 2015