exv4w4






Exhibit 4.4




AMENDED AND RESTATED




CERTIFICATE OF INCORPORATION




OF




US AIRWAYS, INC.




 






Pursuant to Sections 242, 245 and 303 of the

Delaware General Corporation Law




 






          US Airways, Inc. (the “Corporation”), a corporation organized and existing under the
General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify as
follows:




          1. The name of the Corporation is US Airways, Inc. The Corporation was originally
incorporated under the name Facilitation Corp. The original certificate of incorporation of the
Corporation was filed with the office of the Secretary of State of the State of Delaware on March
3, 1982.




          2. On August 11, 2002, the Corporation filed a petition in the United States Bankruptcy Court
for the Eastern District of Virginia, Alexandria Division (the “Bankruptcy Court”) seeking
relief under Chapter 11 of the United States Bankruptcy Code.




          3. This Amended and Restated Certificate of Incorporation was duly adopted pursuant to a plan
of reorganization confirmed by an order of the Bankruptcy Court on March 18, 2003 in accordance
with Section 303 of the DGCL.




          4. This Amended and Restated Certificate of Incorporation restates and integrates and further
amends the certificate of incorporation of the Corporation, as heretofore amended or supplemented.




          5. The text of the Restated Certificate of Incorporation is amended and restated in its
entirety as follows:




 









 








          FIRST: The name of the corporation is US Airways, Inc. (the “Corporation”).




          SECOND: The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its
registered agent at that address is The Corporation Trust Company.




          THIRD: The purpose of the Corporation is to engage in any lawful act or activity for
which a corporation may be organized under the General Corporation Law of the State of Delaware as
set forth in Title 8 of the Delaware Code (as the same exists or may hereafter be amended, the
“DGCL”)




          FOURTH: The total number of shares of stock which the Corporation shall have
authority to issue is One Thousand (1,000) shares of Common Stock, each having a par value of One
Dollar ($1.00).




          FIFTH: All (x) capital stock of, or other equity interests in, the Corporation, (y)
securities convertible into or exchangeable for shares of capital stock, voting securities or other
equity interests in the Corporation, or (z) options, warrants or other rights to acquire the
securities described in clauses (x) and (y), whether fixed or contingent, matured or unmatured,
contractual, legal, equitable or otherwise (collectively, “Equity Securities”) shall be
subject to the following limitations:





     (i) Non-Citizen Voting Limitation. In no event shall the total number of shares of Equity Securities held by all Persons who fail to qualify as a “citizen of the
United States,” as the term is used in Section 40102(a)(15) of Title 49, in any similar
legislation of the United States enacted in substitution or replacement therefor, and as
interpreted by the Department of Transportation, be entitled to be more than 24.9% of the
aggregate votes of all outstanding Equity Securities of the Corporation (the “Cap
Amount”).




     (ii) Allocation of Cap Amounts. The restrictions imposed by the Cap Amount
shall be applied pro rata among the holders of Equity Securities who fail to qualify as
“citizens of the United States” based on the number of votes the underlying securities are
entitled to.



          Each certificate or other representative document for Equity Securities (including each such
certificate or representative document for Equity Securities issued upon any permitted transfer of
Equity Securities) shall contain a



 









 






legend in substantially the following form:





“The [type of Equity Securities] represented by this [certificate/representative document]
are subject to voting restrictions with respect to [shares/warrants, etc.] held by persons
or entities that fail to qualify as “citizens of the United States” as such term is defined
by relevant legislation. Such voting restrictions are contained in the Amended and
Restated Certificate of Incorporation of US Airways, Inc., as the same may be amended or
restated from time to time. A complete and correct copy of such Amended and Restated
Certificate of Incorporation shall be furnished free of charge to the holder of such shares
of [type of Equity Securities] upon written request to the Secretary of US Airways, Inc.”



          SIXTH: The Corporation shall not issue nonvoting equity securities to the extent
prohibited by Section 1123(a)(6) of the United States Bankruptcy Code for so long as such Section
is in effect and applicable to the Corporation.




          SEVENTH: The following provisions are inserted for the management of the business and
the conduct of the affairs of the Corporation, and for further definition, limitation and
regulation of the powers of the Corporation and of its directors and stockholders:





     (1) The business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors.




     (2) The directors shall have concurrent power with the stockholders to make, alter,
amend, change, add to or repeal the By-Laws of the Corporation.




     (3) The number of directors of the Corporation shall be as from time to time fixed by,
or in the manner provided in, the By-Laws of the Corporation. Election of directors need
not be by written ballot unless the By-Laws so provide.




     (4) No director shall be personally liable to the Corporation or any of 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) pursuant to Section 174 of the DGCL, or (iv) for any transaction from which the
director derived an improper personal benefit. Any repeal or modification of this Article
SEVENTH 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 with respect to acts or omissions occurring prior to such repeal or
modification.




     (5) In addition to the powers and authority hereinbefore or by statute expressly
conferred upon them, the directors are hereby empowered to exercise all such powers and do
all such acts and things as may be exercised or done by the Corporation, subject,
nevertheless, to the provisions of the DGCL, this Amended and Restated Certificate of
Incorporation, and any By-Laws adopted by the stockholders; provided, however, that no
By-Laws hereafter adopted by the stockholders shall invalidate any prior act of the
directors which would have been valid if such By-Laws had not been adopted.



          EIGHTH: The Corporation shall indemnify its directors and officers to the fullest
extent authorized or permitted by law, as now or hereafter in effect, and such right to
indemnification shall continue as to a person who has ceased to be a director or officer of the
Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal
representatives; provided, however, that, except for proceedings to enforce rights
to indemnification, the Corporation shall not be obligated to indemnify any director or officer (or
his or her heirs, executors or personal or legal representatives) in connection with a proceeding
(or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized
or consented to by the Board of Directors. The right to indemnification conferred by this Article
EIGHTH shall include the right to be paid by the Corporation the expenses incurred in defending or
otherwise participating in any proceeding in advance of its final disposition.




          The Corporation may, to the extent authorized from time to time by the Board of Directors,
provide rights to indemnification and to the advancement of expenses to employees and agents of the
Corporation similar to those conferred in this Article EIGHTH to directors and officers of the
Corporation.




          The rights to indemnification and to the advance of expenses conferred in this Article EIGHTH
shall not be exclusive of any other right which any person may have or hereafter acquire under this
Amended and Restated Certificate of Incorporation, the By-Laws of the Corporation, any statute,
agreement, vote of stockholders or disinterested directors or otherwise.




 









 








          Any repeal or modification of this Article EIGHTH by the stockholders of the Corporation shall
not adversely affect any rights to indemnification and to the advancement of expenses of a director
or officer of the Corporation existing at the time of such repeal or modification with respect to
any acts or omissions occurring prior to such repeal or modification.




          NINTH: Meetings of stockholders may be held within or without the State of Delaware,
as the By-Laws may provide. The books of the Corporation may be kept (subject to any provision
contained in the DGCL) outside the State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the By-Laws of the Corporation.




          TENTH: The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted
subject to this reservation.




 









 








          IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of
Incorporation to be executed on its behalf this 31st day of March, 2003.




	 	 	 	 	 
	 	US AIRWAYS, INC.

 	 
	 	By:  	/s/ Jennifer C. McGarey
 	 
	 	 	Jennifer C. McGarey 	 
	 	 	Secretary