UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN
PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16 UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of October, 2024
Commission File Number 001-34175
ECOPETROL
S.A.
(Translation of registrant’s
name into English)
Carrera 13 No. 36 – 24
BOGOTA – COLOMBIA
(Address of principal executive offices)
Indicate by check mark whether the registrant files
or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F x
Form 40-F ¨
Indicate by check mark if the registrant is submitting
the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1)
Yes ¨ No x
Indicate by check mark if the registrant is submitting
the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7)
Yes ¨ No x
"Ecopetrol S.A. hereby designates this report on Form 6-K
as being incorporated by reference into its registration statement on Form F-3, as filed with the SEC on April 19, 2024 (File No. 333-278823)."
Exhibits
Exhibit 1.1 – Underwriting Agreement, dated as of October 16, 2024, among Ecopetrol S.A. and BBVA Securities Inc., J.P. Morgan Securities LLC, and Santander US Capital Markets LLC, as underwriters.
Exhibit 5.1 - Opinion of Allen Overy Shearman Sterling US LLP, special New York counsel to the Company, regarding the validity of the securities.
Exhibit 5.2 - Opinion of Brigard & Urrutia Abogados S.A.S., special Colombian counsel to the Company, regarding the validity of the securities.
Exhibit 23.1 - Consent of Allen Overy Shearman Sterling US LLP (included in Exhibit 5.1 above).
Exhibit 23.2 - Consent of Brigard & Urrutia Abogados S.A.S. (included in Exhibit 5.2 above).
Exhibit 99.1 – Form of 7.750% Notes due 2032.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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Ecopetrol S.A. |
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By: |
/s/ Alfonso Camilo Barco Muñoz |
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Name: |
Alfonso Camilo Barco Muñoz |
| Date: October 21,
2024 |
Title: |
Chief Financial Officer |
Exhibit 1.1
Execution
Version
Ecopetrol S.A.
U.S.$1,750,000,000 7.750% Notes due 2032
Underwriting Agreement
October 16, 2024
BBVA Securities Inc.
1345 Avenue of the Americas, 44th Floor
New York, New York 10105
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Santander US Capital Markets LLC
437 Madison Ave
New York, New York 10022
Ladies and Gentlemen:
Ecopetrol S.A. (the “Issuer”),
a mixed-economy company duly established and validly existing under the laws of the Republic of Colombia (“Colombia”
or the “Republic”), proposes to issue and sell to BBVA Securities Inc. (“BBVA”), J.P. Morgan Securities
LLC (“J.P. Morgan”) and Santander US Capital Markets LLC (“Santander” and together with BBVA and
J.P. Morgan, each an “Underwriter” and, together, the “Underwriters”) U.S.$1,750,000,000 aggregate
principal amount of the Issuer’s 7.750% Notes due 2032 (the “Securities”). The Securities will be issued pursuant
to an indenture, dated as of July 23, 2009, between the Issuer and The Bank of New York Mellon, as trustee, registrar, paying agent
and transfer agent (the “Trustee”), as amended by Amendment No. 1 to the indenture, dated as of June 26,
2015, between the Issuer and the Trustee (the “Indenture”), and an officer’s certificate of the Issuer pursuant
to Section 301 of the Indenture establishing terms of the Securities, to be dated as of the Closing Date (as defined herein).
The Issuer has prepared and filed with the Securities
and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the “Securities Act”), an “automatic shelf registration statement”
(as defined in Rule 405 under the Securities Act) on Form F-3 (File No. 333-278823), which contains a base prospectus (the
“Base Prospectus”), to be used in connection with the public offering and sale of securities of the Issuer, including
the Securities, from time to time in accordance with Rule 415 under the Securities Act. Such registration statement, including the
financial statements, exhibits and schedules thereto, at the time it first and most recently became effective under the Securities Act,
including any required information deemed to be a part thereof at the time of such effectiveness pursuant to Rule 430B or 430C (the
“Rule 430 Information”) at such time under the Securities Act, is called the “Registration Statement.”
The term “Prospectus” shall mean the final prospectus supplement relating to the Securities, together with the Base
Prospectus, that is first filed pursuant to Rule 424(b) under the Securities Act after the date and time that this Underwriting
Agreement (the “Agreement”) is executed by the parties hereto (the “Time of Execution”). The term
“Preliminary Prospectus” shall mean any preliminary prospectus supplement relating to the Securities, together with
the Base Prospectus, that is first filed with the Commission pursuant to Rule 424(b) under the Securities Act. Any reference
herein to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents
that are or are deemed to be incorporated by reference therein pursuant to item 6 of Form F-3 under the Securities Act prior to the
time when sales of the Securities were first made at 7:50 p.m. (New York City time) on October 16, 2024 (the “Time
of Sale”). All references in this Agreement to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any
amendments or supplements to any of the foregoing shall include any copy thereof filed with the Commission pursuant to its Electronic
Data Gathering Analysis and Retrieval System (“EDGAR”).
All references herein to financial statements and
schedules and other information which are “contained,” “included” or “stated” (or other references
of like import) in the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to mean and include all such
financial statements and schedules and other information that is or is deemed to be incorporated by reference in the Registration Statement,
the Prospectus or the Preliminary Prospectus, as the case may be, prior to the Time of Sale; and all references herein to the terms “amend”,
“amendment”, or “supplement” with respect to the Registration Statement, the Prospectus and the Preliminary Prospectus
shall be deemed to mean and include all information filed under the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (collectively, the “Exchange Act”) after the Time of Sale which is or is deemed
to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be.
1. Representations
and Warranties. The Issuer hereby represents, warrants and covenants to each Underwriter as of the Time of Execution, the Time of
Sale and the Closing Date that:
(a) Compliance
with Registration Requirements. The Issuer meets the requirements for use of Form F-3 under the Securities Act. The Registration
Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the best of the Issuer’s
knowledge are contemplated or threatened by the Commission, and any request on the part of the Commission for additional information has
been complied with. In addition, the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and the rules and
regulations promulgated thereunder (the “Trust Indenture Act”).
At the respective times the Registration Statement
and any post-effective amendments became effective and at the Time of Sale and at the Closing Date, the Registration Statement and any
amendments thereto (i) complied and will comply in all material respects with the requirements of the Securities Act and the Trust
Indenture Act, and (ii) did not and will not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading. At the date of the Prospectus and the Closing Date, neither
the Prospectus nor any amendments or supplements thereto included or will include an untrue statement of a material fact or omitted or
will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading. Notwithstanding the foregoing, the representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement or any post-effective amendment or the Prospectus or any amendments or supplements thereto
made in reliance upon and in conformity with information furnished to the Issuer in writing by any of the Underwriters for use therein,
it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such
in Section 12 hereof.
Each Preliminary Prospectus and the Prospectus,
at the time each was filed with the Commission, complied in all material respects with the Securities Act, and the Preliminary Prospectus
and the Prospectus delivered to the Underwriters for use in connection with the offering of the Securities will, at the time of such delivery,
be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
(b) Time
of Sale Information. The term “Time of Sale Information” shall mean (i) the Preliminary Prospectus dated October 16,
2024, (ii) the issuer free writing prospectuses as defined in Rule 433 of the Securities Act (each, an “Issuer Free
Writing Prospectus”), if any, identified in Schedule III hereto and (iii) any other free writing prospectus that the parties
hereto shall hereafter expressly agree in writing to treat as part of the Time of Sale Information. As of the Time of Sale and the Closing
Date, the Time of Sale Information did not and will not contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The preceding sentence does not apply to statements in or omissions from the Time of Sale Information based upon and in conformity with
written information furnished to the Issuer by any Underwriter specifically for use therein, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information described as such in Section 12 hereof.
(c) Incorporated
Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Preliminary Prospectus
and the Prospectus (i) at the time they were or hereafter are filed with the Commission, complied or will comply in all material
respects with the requirements of the Exchange Act and (ii) when read together with the other information in the Time of Sale Information,
at the Time of Sale, and when read together with the other information in the Prospectus, at the date of the Prospectus and at the Closing
Date, did not or will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading.
(d) Issuer
is a Well-Known Seasoned Issuer. (i) At the time of filing the Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-
effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at
the time the Issuer or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities
Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 of the Securities Act, and (iv) as of
the Time of Execution, the Issuer was and is a “well-known seasoned issuer” as defined in Rule 405 of the Securities
Act. The Registration Statement is an “automatic shelf registration statement” as defined in Rule 405 of the Securities
Act, that automatically became effective not more than three years prior to the Time of Execution; the Issuer has not received from the
Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration
statement form and the Issuer has not otherwise ceased to be eligible to use the automatic shelf registration form.
(e) Issuer
is not an Ineligible Issuer. (i) At the time of filing the Registration Statement, (ii) as of the Time of Execution (with
such date being used as the determination date for purposes of this clause (ii)), the Issuer was not and is not an Ineligible Issuer (as
defined in Rule 405 of the Securities Act), without taking account of any determination by the Commission pursuant to Rule 405
of the Securities Act that it is not necessary that the Issuer be considered an Ineligible Issuer.
(f) Issuer
Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion
of the offering of Securities under this Agreement or until any earlier date that the Issuer notified or notifies the Underwriters as
described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with
the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus. If at any time following issuance
of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus,
the Issuer has promptly notified or will promptly notify the Underwriters and has promptly amended or supplemented or will promptly amend
or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The foregoing two sentences
do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information
furnished to the Issuer by any Underwriter specifically for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in Section 12 hereof.
(g) Distribution
of Offering Material by the Issuer. The Issuer has not distributed and will not distribute, prior to the later of the Closing Date
and the completion of the Underwriters’ distribution of the Securities, any offering material in connection with the offering and
sale of the Securities other than the Registration Statement, the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus
reviewed and consented to by the Underwriters and included in Schedule III hereto or any electronic road show or other written communications
reviewed and consented to by the Underwriters and listed on Schedule IV hereto (each an “Issuer Additional Written Communication”).
Each such Issuer Additional Written Communication, when taken together with the Time of Sale Information at the Time of Sale did not,
and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does
not apply to statements in or omissions from the Issuer Additional Written Communication based upon and in conformity with written information
furnished to the Issuer by any Underwriter for use therein, it being understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in Section 12 hereof.
(h) Financial
Statements. The financial statements of the Issuer and the financial information derived therefrom included, or incorporated by reference,
in each of the Registration Statement, the Time of Sale Information and the Prospectus comply in all material respects with the requirements
of the Securities Act and the Exchange Act, as applicable, and present fairly the financial condition, results of operation and cash flows
of the Issuer as of the dates and for the periods indicated and have been prepared (i) in accordance with the principles and accounting
standards and financial information accepted in Colombia, which is based on International Financial Reporting Standards (“IFRS”)
and its interpretations, as issued by the International Accounting Standards Board (“IASB”) and other applicable legal
provisions for entities supervised or controlled by the National Accounting Office (Contaduría General de la Nación),
which may differ in some respects from those established by other Governmental control bodies, or (ii) in accordance with IFRS, as
issued by the IASB, in each of (i) and (ii), as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus.
The segment data and other financial and statistical information included in the Registration Statement, the Time of Sale Information
and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial
statements that are included in the Registration Statement, Time of Sale Information and the Prospectus and the books and records of the
Issuer.
(i) No
Material Adverse Change. Subsequent to the respective dates as of which information is given in the Registration Statement, the Time
of Sale Information and the Prospectus (exclusive of any amendment or supplement thereto), there has not occurred any material adverse
change or any development that could reasonably be expected to have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Issuer (a “Material Adverse Effect”).
(j) Forward
Looking Statements. The forward-looking statements included in the Registration Statement, the Time of Sale Information and the Prospectus,
if any, are derived from sources that the Issuer believes to be reliable and accurate in all material respects and represents its good
faith estimates that are made on the basis of data derived from such sources.
(k) Status
of the Issuer. The Issuer is duly organized and validly existing as a mixed-economy company under the laws of Colombia with the power
and authority to own and hold under lease or other valid instrument its properties and conduct its business as described in the Registration
Statement, the Time of Sale Information and the Prospectus and is duly qualified to conduct the business in which it is engaged in each
jurisdiction or place where the conduct of its business requires such qualification, except where the failure to be so qualified could
not, individually or in the aggregate, have a Material Adverse Effect.
(l) Good
Standing of Significant Subsidiaries. Each of the Issuer’s significant subsidiaries (as defined in Rule 405 under the Securities
Act, each a “Significant Subsidiary”) is duly organized and validly existing in good standing under the laws of the
jurisdiction of its incorporation with the power and authority to own and hold under lease or other valid instrument its properties and
to conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus and is duly qualified
to conduct the business in which it is engaged in each jurisdiction or place where the conduct of its business requires such licenses
or qualification, except where the failure to be so licensed or qualified would not have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of such Significant Subsidiary.
(m) Due
Authorization. The Issuer has full right, power and authority to execute and deliver this Agreement, the Indenture and the Securities
(each a “Transaction Document” and collectively, the “Transaction Documents”) and to perform its
obligations hereunder and thereunder; and all actions required to be taken for the due and proper authorization, execution and delivery
of each of the Transaction Documents and the consummation of the transactions contemplated thereby have been duly and validly taken.
(n) Underwriting
Agreement. This Agreement has been duly authorized, executed and delivered by the Issuer.
(o) The
Indenture. The Indenture has been duly authorized, executed and delivered by the Issuer, and assuming due authorization, execution
and delivery thereof by the Trustee, constitutes a valid and legally binding instrument enforceable against the Issuer in accordance with
its terms subject, as to the enforcement of remedies, to (i) applicable bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors’ rights generally from time to time in effect and to the general principles of equity, and (ii) possible
judicial action giving effect to governmental actions or foreign laws affecting creditors’ rights (the “Enforceability
Exceptions”). The Indenture has been duly qualified under the Trust Indenture Act.
(p) The
Securities. The Securities have been duly authorized by the Issuer and, when executed and authenticated by the Trustee in accordance
with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with this Agreement, will have been
duly executed and delivered and will constitute legal, valid and binding obligations of the Issuer enforceable in accordance with their
terms and entitled to the benefits of the Indenture subject to the Enforceability Exceptions.
(q) Description
of the Transaction Documents. Each Transaction Document conforms in all material respects to the description thereof contained in
the Registration Statement, the Time of Sale Information and the Prospectus.
(r) No
Violation or Default. Neither the Issuer nor any Significant Subsidiary is (i) in default, and no event has occurred that, with
notice or lapse of time or both, would constitute a default, in the due performance or observance of any term, covenant or condition contained
in any contract, fiscal agency agreement, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument
to which it is a party or by which it is bound or to which any of its property or assets are subject, (ii) in violation or default
of its corporate bylaws (Estatutos) or (iii) in violation of any applicable law or statute (including, without limitation,
the Colombian Constitution or any Colombian law, decree, resolution or regulation) or any judgment, order or regulation of any governmental
agency or body or court to which it or its property or assets may be subject, except, in the case of clauses (i) and (iii) above,
for any such violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(s) No
Conflicts. The execution, delivery and performance by the Issuer of each of the Transaction Documents, the consummation of the transactions
contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus, the issuance and sale of the Securities
and compliance by the Issuer with the terms thereof, (i) will not result in any violation of any applicable law or statute (including,
without limitation, the Colombian Constitution or any Colombian law, decree, resolution or regulation or any treaty to which Colombia
is a party) or any judgment, order or regulation of any governmental agency or body or court having jurisdiction over the Issuer or any
of its properties or assets, (ii) will not result in any violation or default of the corporate by-laws (Estatutos) of the
Issuer and (iii) will not conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of, any lien, charge or encumbrance upon any property or assets of the Issuer
or any Significant Subsidiary, pursuant to, any contract, fiscal agency agreement, indenture, mortgage, deed of trust, loan agreement,
note, lease or other agreement or instrument to which the Issuer is a party or by which the Issuer or any Significant Subsidiary is bound
or to which any of the property or assets of the Issuer or any Significant Subsidiary is subject except, in the case of clauses (i) and
(iii) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the
aggregate, have a Material Adverse Effect.
(t) No
Consents Required. No consent, approval, authorization, order, registration, filing, or qualification of or with any court or arbitrator
or governmental or regulatory authority is required in connection with the transactions contemplated herein, the Securities or in the
Indenture, including payment of principal, interest and Additional Amounts (as defined in the Indenture), if any, on the Securities except
for (A):
(1) Requirements
regarding the authorizations from the Ministry of Finance and Public Credit of Colombia (Ministerio de Hacienda y Crédito Público
or “MHCP”) set forth in Law 533 of November 11, 1999, and Law 781 of 2002 as amended, and other complementary
regulations;
(2) Requirements
regarding the authorization from the MHCP set forth in Article 2.2.1.2.1.4, 2.2.1.3.3, 2.2.1.4.2, and 2.2.1.4.4 of Decree 1068 of
2015, as amended, and other complementary regulations;
(3) Authorization
by the board of directors (Junta Directiva) of the Issuer for the indebtedness to be incurred with the issuance of the Securities;
(4) The
authorization granted by the MHCP pursuant to Resolution No. 2990 dated October 8, 2024, relating to the issuance and sale of
the Securities and the execution and performance of the documents required to consummate the transactions contemplated by the Transaction
Documents as ordered in Decree 1068 of 2015, and other complementary regulations;
(5) The
registration of the public external indebtedness before the Colombian Central Bank (Banco de la República) by filing the
relevant “International Indebtedness granted to Residents Form (Informe de Crédito Externo Otorgado a Residentes)
provided by the intermediary of the foreign exchange market used in such registration, resulting from the issuance of the Securities
under the Indenture and the Securities (in observance of articles 41(2), 44-51 of External Resolution 1 of 2018 and other complementary
regulations);
(6) Evidence
of the publication of this Agreement in the Sistema Electrónico para la Contratación Pública —SECOP,
pursuant to article 2.2.1.1.1.7.1 of Decree 1082 of 2015 and article 2.2.1.5.8 of Decree 1068 of 2015, which requirement shall be satisfied
at the date of publication of this Agreement, and publication of the authorization from the MHCP in the Diario Oficial, which requirement
shall be satisfied with the issuance by the Director General of Public Credit and National Treasury of the Ministry of Finance and Public
Credit of the request of publication of such authorization;
(7) Filing
of these Transaction Documents, as applicable, with the Contraloría General de la República
as a record of the indebtedness no later than five (5) Business Days after the Closing Date; and
(8) Requirements
set forth in Article 5 of Law 781 of 2002, as amended and other complementary regulations, in case of any amendments to any of the
Transaction Documents;
all of which have been obtained or, as the case may be, made, and all
of which are in full force and effect or will be obtained or made and will be in full force and effect on or prior to the Closing Date,
and (B) such consents, approvals, authorizations, orders and registrations or qualifications as may be required under applicable
Blue Sky or securities laws of the States comprising the United States in connection with the purchase and resale of the Securities by
the Underwriters.
(u) Financial
Conditions. The financial conditions of the issuance and sale of the Securities will be determined in accordance with Article 16
(c) and (h) of Law 31 of 1992 and the regulations of the Colombian Central Bank (Banco
de la República), including External Resolution No. 1 of 2018 issued by the board of directors of the Colombian Central
Bank (Banco de la República), as amended or supplemented.
(v) Legal
Proceedings. Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal,
governmental or regulatory investigations, actions, suits or proceedings pending to which the Issuer is or may be a party or to which
any property or assets of the Issuer, or any agency or entity controlled by the Issuer, is or may be
subject that, individually or in the aggregate, if determined adversely to the Issuer, could reasonably be expected to have a Material
Adverse Effect; and to the best knowledge of the Issuer no such investigations, actions, suits or proceedings
are threatened or contemplated by any governmental body or agency or other person.
(w) Withholding
Taxes. Except as disclosed in the Registration Statement, Time of Sale Information and the Prospectus, pursuant to Section 218
of the Colombian Tax Code (governing the general tax exemption on external public debt), all payments of principal, premium, if any, interest
and other amounts in respect of the Securities made to holders of Securities (other than holders of Securities who are resident or domiciled
in Colombia) will not be subject to and may otherwise be made free and clear of any withholding or deduction
for or on account of any tax, duty, assessment or governmental charge imposed or levied in Colombia and without the necessity of obtaining
governmental authorization in Colombia (including without limitation, under tax, exchange control or other laws or regulations), other
than the authorizations referred to in Section 1(t) hereof.
(x) Other
Taxes in Relation to Transaction. Under current Colombian law, no issuance or transfer taxes or duties and no income, capital gains,
withholding or other taxes are payable by or on behalf of the Underwriters (other than in respect of holders of Securities who are
resident or domiciled in Colombia) or the Trustee to Colombia or to any political subdivision or taxing authority thereof or therein (including
the Issuer) in connection with (i) the execution, delivery and performance of this Agreement or the Indenture or the execution or
delivery of the Securities, (ii) the authorization, issuance, sale or delivery of the Securities by the Issuer, and (iii) the
sale and delivery of the Securities by the Underwriters to the purchasers therefrom.
(y) Broker’s
Fees. The Issuer is not a party to any contract, agreement or understanding with any person (other than this Agreement) that would
give rise to a valid claim against the Issuer or the Underwriters for a brokerage commission, finder’s fee or similar payment in
connection with the offering and sale of the Securities.
(z) No
Stabilization. Neither the Issuer nor any of its affiliates has taken, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation of the price of the
Securities.
(aa) Validity under
Colombian law. (i) This Agreement, the Indenture and the Securities are in proper form under Colombian law for the enforcement thereof
against the Issuer, and to ensure the legality, validity or enforceability of, or the priority of the indebtedness incurred by the Issuer
under, each of this Agreement, the Indenture, the Securities and any other document to be furnished hereunder or thereunder in Colombia,
it is not necessary that any such document be filed or recorded with any Colombian governmental agency or body or court, except as set
forth in Section 1(t) hereof, or that any stamp or similar tax be paid in Colombia on or in respect of any such document, to
enforce the Transaction Documents in Colombia; and (ii) the publication and filing requirements set forth in Section 1(t) are
not requirements to establish or maintain the legality, validity or enforceability of, or the priority of the indebtedness incurred by
the Issuer under, this Agreement, the Indenture or the Securities or any other document required to be furnished hereunder or under the
laws of Colombia or establish the admissibility into evidence of any of this Agreement, the Indenture or the Securities or any other
document required to be furnished hereunder or thereunder in any court in Colombia.
(bb) Governing
Law. The choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of
Colombia, except that all matters governing authorizations and execution shall be governed by the laws of Colombia. Subject to compliance
with certain Colombian evidentiary requirements, the courts of Colombia shall honor this choice of law; provided, that the primary
obligations arising from this Agreement are performed outside Colombia; this Agreement does not contravene
Colombian provisions of public policy; and provided, further, that the application of New York law will be preempted by
applicable Colombia law in matters of bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and laws of general applicability
relating to or affecting enforcement of creditors’ rights generally or to general principles of equity; the submission by the Issuer
to the non-exclusive jurisdiction of the U.S. federal or state courts sitting in the Borough of Manhattan, the City of New York in this
Agreement constitutes a valid and legally binding obligation of the Issuer, and service of process effected in the manner set forth in
this Agreement assuming validity under the laws of the State of New York, will be effective, insofar as Colombian law is concerned, to
confer valid personal jurisdiction over the Issuer.
(cc) Enforcement
of Foreign Judgments in Colombia. A judgment of a U.S. federal or New York state court would be enforced in Colombia, subject to the
issuance of a writ of “exequatur”, which is a procedure that takes place before the Supreme Court of Colombia and is regulated
by articles 605 through 607 of Law 1564 of 2012 (Código General del Proceso), according to which the Supreme Court of Colombia
will verify the existence of a treaty relating to the recognition of foreign judgments between Colombia and
the country of origin of the judgment, or in the absence of a treaty, proper evidence is provided to the Supreme Court of Colombia to
the effect that the courts of the country of the subject judgment would recognize and enforce Colombian judgments and that the following
requirements have been observed (A) such foreign judgment does not refer to in rem rights on assets located within Colombian
territory at the commencement of the proceedings in the foreign court which issued the judgment; (B) such foreign judgment does not
conflict with public order laws of Colombia, except procedural laws; (C) such foreign judgment is final and not subject to appeal,
according to the laws of the country where it was made; (D) a duly legalized copy of the judgment (together with an official translation
into Spanish if the judgment is issued in a foreign language) has been presented to a competent court in Colombia; (E) no proceedings
are pending before Colombian courts with respect to the same subject matter, or final judgment has been awarded by a Colombian Court in
any proceedings on the same subject matter; (F) the subject matter of such foreign judgment is not of the exclusive jurisdiction
of a Colombian court or judge; (G) in the proceedings in which such foreign judgment was made, the defendant was properly served
according to the laws of such jurisdiction and given an opportunity to defend the action in question and (H) the “exequatur”
requirement has been observed.
(dd) No
Sovereign Immunity. Under the laws of Colombia, none of the Issuer, its property or assets is entitled to sovereign or other immunity
from suit, execution, attachment or other legal process in Colombia, except as provided under (i) Articles 192, 193 and 195 of Law
1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo), as
amended by Article 87 of Law 2080 of 2021; and (ii) Articles 593, 594 and 595 et al of Law
1564 of 2012 (Código General de Proceso), pursuant to which the revenues, assets and property of the Issuer located in Colombia
are not subject to execution, set-off or attachment; provided, however, that under the laws of Colombia, any suit, action, proceeding
or jurisdiction for the collection of amounts ordered by or arising from collectable documents will be subject to the rules set forth
under Articles 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo)
as amended by Articles 80, 81 and 87 of Law 2080 of 2021. Under the laws of Colombia, the regulations that govern statutes of limitations
and other time limits for any suit, action, proceeding or jurisdiction may not be waived by the Issuer.
(ee) Accounting
Controls. The Issuer maintains or maintained, as the case may be, systems of internal accounting controls that are sufficient to provide
reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS, and
to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any differences. Except as disclosed in the Registration Statement,
the Time of Sale Information and the Prospectus, there are (a) no material weaknesses in the Issuer’s internal control over
financial reporting and (b) since January 1, 2023, there has been no change in the Issuer’s internal control over financial
reporting that is required to be disclosed pursuant to the applicable rules and regulations of the Commission or under IFRS, in reports
the Issuer files with the Commission.
(ff) Title
to Real and Personal Property. Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus,
the Issuer and each Significant Subsidiary have good and marketable title in fee simple to or have valid rights to lease or otherwise
use, all items of real and personal property that are material to the respective businesses of the Issuer and its Significant Subsidiaries,
in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title except those that (i) do not
materially interfere with the use made and proposed to be made of such property by the Issuer and its Significant Subsidiaries or (ii) could
not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(gg) No
Labor Disputes. Except as disclosed in the Registration Statement, the Time of Sale Information
and the Prospectus, no labor disturbance by or dispute with employees of the Issuer exists or, to the best knowledge of the Issuer, is
contemplated or threatened and the Issuer is not aware of any existing or imminent labor disturbance by, or dispute with, the employees
of any of the Issuer’s principal suppliers, contractors or customers, except where such a labor disturbance or dispute would not
have a Material Adverse Effect.
(hh) Insurance.
The Issuer has insurance covering their respective properties, operations, personnel and businesses, including business interruption insurance,
which insurance is in amounts and insures against such losses and risks as are adequate to protect
the Issuer and its businesses; and the Issuer has not (i) received notice from any insurer or agent
of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance
or (ii) any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue
its business.
(ii) Compliance
with Applicable Money Laundering Laws. The operations of the Issuer are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements established in Chapter VII Title I Part III
of Circular Externa 029 of 2014 (Circular Básica Jurídica) of the Superintendency of Finance (as amended from time
to time), the relevant sections of Article 102 of the Estatuto Orgánico del Sistema Financiero, the applicable money
laundering statutes, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the “Money Laundering Laws”), and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any Significant Subsidiary
with respect to the Money Laundering Laws is pending or, to the best knowledge of the Issuer, threatened.
(jj) Compliance
with OFAC. None of the Issuer or, to the knowledge of the Issuer, the Republic of Colombia, any director, officer, agent, employee
or subsidiary of the Issuer is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“OFAC”); and the Issuer will not directly or indirectly use the proceeds of the offering
of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or
other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered
by OFAC.
(kk) No
Unlawful Payments. Neither the Issuer nor any of its subsidiaries nor, to the best knowledge of the Issuer, any director, officer,
agent, employee or other person associated with or acting on behalf of the Issuer or any of its subsidiaries has (i) used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any
direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated
or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(ll) Compliance
with Environmental Laws. Except as disclosed in the Issuer’s form 20-F for the fiscal year ended December 31, 2023, which
is incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus, (i) the Issuer and its
Significant Subsidiaries (x) are in compliance with any and all applicable laws, rules, regulations, requirements, decisions
and orders relating to the protection of human health or safety the environment, natural resources, hazardous or toxic substances or wastes,
pollutant or contaminants (collectively, “Environmental Laws”), (y) have received and are in compliance with
all permits, licenses, certificates or other authorizations or approvals required of them under applicable Environmental Laws to conduct
their respective businesses, and (z) have not received notice of any actual or potential liability under relating to any Environmental
Laws, including for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants
or contaminants, and have no knowledge of any event or condition that would reasonable be expected to result in any such notice, and (ii) there
are no costs or liabilities associated with Environmental Laws of or relating to the Issuer or its Significant Subsidiaries, except in
the case of each of (i) and (ii) above, for any such failure to comply, or failure to receive required permits, licenses or
approvals, or cost or liability, as would not, individually or in the aggregate, have a Material Adverse Effect.
(mm) Licenses
and Permits. The Issuer and its Significant Subsidiaries possess all licenses, certificates, permits and other authorizations issued
by, and have made declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities
that are necessary for the ownership or lease their respective properties or the conduct of their
respective businesses as described in the Registration Statement, the Time of Sale Information and the Prospectus, except where the failure
to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect; and except as described in the
Registration Statement, the Time of Sale Information and the Prospectus, neither the Issuer nor any of its Significant Subsidiaries has
received notice of any revocation or modification of any such license, certificate, permit or authorization or has any reason to believe
that any such license, certificate, permit or authorization will not be renewed in the ordinary course.
(nn) Title
to Intellectual Property. (i) The Issuer and its Significant Subsidiaries own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems
or procedures) necessary for the conduct of their respective businesses; and (ii) the conduct of their respective businesses will
not conflict in any material respect with any such rights of others, and the Issuer and its Significant Subsidiaries have not received
any notice of any claim of infringement of or conflict with any such rights of others, except in the case of each of (i) and (ii) above,
for any such failure to own or possess the adequate rights or existence of a conflict as would not, individually or in the aggregate,
have a Material Adverse Effect.
(oo) Independent
Accountants. Ernst & Young S.A.S. is an independent registered public accounting firm with respect to the Issuer and its
Significant Subsidiaries within the applicable rules and regulations adopted by the Commission
and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(pp) Sarbanes-Oxley
Act. There is and has been no failure on the part of the Issuer or any of the Issuer’s directors or officers, in their capacities
as such, to comply with any provision of the U.S. Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith that the Issuer or any of its subsidiaries is subject to, including Section 402 related
to loans and Sections 302 and 906 related to certifications.
(qq) Investment
Company Act. The Issuer is not, and after giving effect to the offer and sale of the Securities and the application of the proceeds
therefrom as described under “Use of Proceeds” in each of the Registration Statement, the Time of Sale Information and the
Prospectus will not be, required to register as an “investment company” within the meaning
of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(rr) Capitalization.
The Issuer has an authorized capitalization as set forth in each of the Registration Statement, the Time of Sale Information and the Prospectus,
and all of the issued shares of capital stock of the Issuer have been duly authorized and validly issued and are fully paid and non-assessable,
except for any shares subject to installment payments. All of the issued shares of capital stock of each Significant Subsidiary of the
Issuer have been duly authorized and validly issued, are fully paid and non-assessable and (except
for directors’ qualifying shares for foreign subsidiaries and except as set forth in each of the Registration Statement, the Time
of Sale Information and the Prospectus) are owned directly or indirectly by the Issuer, free and clear of all liens, encumbrances, equities
or claims, except for such liens, encumbrances, equities or claims as could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(ss) No
Registration Rights. There are no persons with registration rights or other similar rights to have any securities registered for sale
pursuant to the Registration Statement or otherwise registered for sale or sold by the Issuer under the Securities Act pursuant to this
Agreement.
(tt) Accuracy
of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the Time of Sale
Information or the Prospectus or to be filed as exhibits to the Registration Statement which have
not been so described and filed as required.
2. Purchase
and Resale of the Securities.
(a) The
Issuer agrees to issue and sell the Securities to the Underwriters as provided in this Agreement, and each Underwriter, on the basis of
the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees severally and
not jointly, to purchase from the Issuer the respective principal amount of the Securities set forth opposite such Underwriter’s
name on Schedule I hereto, at a price equal to 99.594% of the principal amount thereof, plus accrued interest, if any, from October 21,
2024, to the date of payment and delivery. The Issuer will not be obligated to deliver any of its Securities except upon payment for all
the Securities to be purchased as provided herein.
(b) The
Issuer acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate (as that term is defined
by Rule 405 under the Securities Act) of the Underwriters and that any such affiliate may offer
and sell Securities purchased by it or through the Underwriters.
(c) Each
Underwriter severally represents to and agrees with the Issuer that it has not offered, sold or delivered
and it will not offer, sell or deliver, directly or indirectly, any of the Securities or distribute or publish the Registration Statement,
the Preliminary Prospectus or the Prospectus or any offering circular, form of application, advertisement or other document or information
relating to the Securities, in any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result
in compliance with all laws and regulations applicable thereto (including, without limitation, any prospectus
delivery requirements) and which will not impose any obligations on the Issuer except as contained in this Agreement.
3. Payment
and Delivery.
(a) Payment
for, and delivery of, the Securities shall be made at the office of Milbank LLP, 55 Hudson Yards, New York,
New York 10001, at 9:00 a.m. New York time on October 21, 2024 or at such other time on the same or such other date, not later
than the fifth Business Day thereafter, as the Underwriters and the Issuer may agree upon in writing. The time and date of such payment
and delivery is referred to herein as the “Closing Date”. As used herein, the term “Business Day” means
any day other than a day on which banks are permitted or required to be closed in New York City or in Bogotá, D.C., Colombia.
(b) Payment
for the Securities shall be made by wire transfer in immediately available funds to the account specified in writing by the Issuer to
the Underwriters against delivery to the Trustee, as custodian for the nominee of The Depository Trust Company (“DTC”),
for the account of the Underwriters, of one or more global certificates representing the Securities,
with any transfer taxes payable in connection with the sale of the Securities duly paid by the Issuer. The Securities will be made available
by the Issuer for inspection by the Underwriters not later than 3:00 P.M., New York City time, on the Business Day prior to the Closing
Date.
4. Further
Agreements of the Issuer. The Issuer covenants and agrees with the Underwriters that:
(a) Delivery
of Copies. Subject to Section 8 hereof, the Issuer will furnish to the Underwriters and to counsel for the Underwriters, without
charge, during the Prospectus Delivery Period (as defined below), such copies of the Registration Statement, the Time of Sale Information
and the Prospectus, and any amendments and supplements thereto (in each case including all exhibits
filed therewith and all documents incorporated therein not previously furnished to the Underwriters) as any Underwriter may reasonably
request.
(b) Compliance
with Securities Regulations and Commission Requests. The Issuer, subject to Section 4(d), will comply with the requirements of
Rule 430B of the Securities Act, and will promptly notify the Underwriters, and confirm the notice in writing, of (i) the effectiveness
during the Prospectus Delivery Period of any post-effective amendment to the Registration Statement
or the filing of any supplement or amendment to the Preliminary Prospectus or the Prospectus, (ii) any
request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus
or the Prospectus or for additional information, and (iii) the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or of
the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of
any proceedings for any of such purposes. The Issuer will promptly effect the filings necessary pursuant to Rule 424 and will take
such steps as it deems necessary to ascertain promptly whether the Preliminary Prospectus and the Prospectus transmitted for filing under
Rule 424 was received for filing by the Commission and, in the event that it was not, it will promptly
file such document. The Issuer will use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(c) Filing
of Amendments. During such period beginning on the date of this Agreement and ending on the later of the Closing Date or such date
as, in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales
of the Securities by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172
of the Securities Act (the “Prospectus Delivery Period”), the Issuer will give
the Underwriters notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b) of
the Securities Act), or any amendment, supplement or revision to the Time of Sale Information or the Prospectus, whether pursuant to the
Securities Act, the Exchange Act or otherwise, will furnish the Underwriters with copies of any such documents
a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which
the Underwriters or counsel for the Underwriters shall reasonably object.
(d) Periodic
Reports Under the Exchange Act. During the Prospectus Delivery Period, the Issuer shall file,
on a timely basis, with the Commission and the New York Stock Exchange all reports and documents required to be filed under the Exchange
Act.
(e) Term
Sheet. The Issuer will prepare a final term sheet, containing solely a description of the final terms of the Securities and the offering
thereof, substantially in the form approved by the Underwriters and attached as Schedule II hereto, and will file such term sheet pursuant
to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the “Final Term
Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus (as defined
herein) for purposes of this Agreement.
(f) Notice
to the Underwriters. The Issuer will advise the Underwriters promptly, (i) of the issuance by any governmental or regulatory
authority of any order preventing or suspending the use of the Registration Statement, any of the
Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus or the initiation or threatening of any proceeding
for that purpose; and (ii) of the receipt by the Issuer of any notice with respect to any suspension of the qualification of the
Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Issuer
will use its reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of the Registration Statement,
any of the Time of Sale Information, any Issuer Free Writing Prospectus or the Prospectus or suspending any such qualification of the
Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(g) Ongoing
Compliance of the Registration Statement. If, at any time during the Prospectus Delivery Period (i) any event shall occur or
condition shall exist as a result of which the Registration Statement as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or (ii) it is necessary to amend or supplement the Registration
Statement to comply with law, the Issuer will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph
(c) above, furnish to the Underwriters and file with the Commission such amendments or supplements to
the Registration Statement as may be necessary so that the statements in the Registration Statement as so amended or supplemented will
not be misleading or so that the Registration Statement will comply with law.
(h) Ongoing
Compliance of the Time of Sale Information. If, at any time during the Prospectus Delivery Period (i) any event shall occur or
condition shall exist as a result of which any of the Time of Sale Information as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement
any of the Time of Sale Information to comply with law, the Issuer will immediately notify the Underwriters
thereof and forthwith prepare and, subject to paragraph (c) above, furnish to the Underwriters and file with the Commission such
amendments or supplements to the Time of Sale Information as may be necessary so that the statements in any of the Time of Sale Information
as so amended or supplemented will not, in light of the circumstances under which they were made, be misleading or so that all of the
Time of Sale Information will comply with law.
(i) Ongoing
Compliance of the Prospectus. If at any time during the Prospectus Delivery Period (i) any event shall occur or condition shall
exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser not misleading or (ii) it is
necessary to amend or supplement the Prospectus to comply with law, the Issuer will immediately notify the Underwriters thereof and forthwith
prepare and, subject to paragraph (c) above, furnish to the Underwriters and file with the Commission such amendments or supplements
to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of
the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law.
(j) Permitted
Free Writing Prospectuses. The Issuer represents that it has not made, and agrees that, unless it obtains the prior written consent
of the Underwriters (such consent not to be unreasonably withheld), it will not make, any offer relating
to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Issuer with the
Commission or retained by the Issuer under Rule 433 of the Securities Act; provided that the prior written consent of the Underwriters
shall be deemed to have been given in respect of any Issuer Free Writing Prospectuses included in Schedule III to this Agreement. Any
such free writing prospectus consented to or deemed to be consented to by the Underwriters is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Issuer agrees that (i) it has treated and will treat, as the case may be, each Permitted
Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect
of timely filing with the Commission, legending and record keeping. The Issuer consents to the use by any Underwriter of a free writing
prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only
(i) information describing the preliminary terms of the Securities or their offering, (ii) information permitted by Rule 134
under the Securities Act or (iii) information that describes the final terms of the Securities or their offering and that is included
in the Final Term Sheet of the Issuer contemplated in Section 4(e) hereto.
(k) Filing
Fees. The Issuer agrees to pay the required Commission filing fees relating to the Securities
within the time required by and in accordance with Rules 456(b)(1) and 457(r) of the Securities
Act.
(l) Compliance
with Sarbanes-Oxley. During the Prospectus Delivery Period, the Issuer will comply with all applicable securities and other laws,
rules and regulations, including, without limitation, the Sarbanes-Oxley Act.
(m) Blue
Sky Compliance. The Issuer will cooperate with the Underwriters to qualify the Securities for offer and sale under the Blue Sky or
securities laws of the States comprising the United States as the Underwriters shall reasonably request
and will continue such qualifications in effect so long as may be reasonably required for the offering and resale of the Securities; provided
that the Issuer shall not be required to (i) file any general consent to service of process in any jurisdiction,
(ii) take any action that would subject it to the service of process in proceedings, other than relating to the distribution of the
Securities, in any jurisdiction where it is not now so subject or (iii) subject itself to taxation in any such jurisdiction it is
not otherwise so subject.
(n) DTC.
The Issuer will cooperate with the Underwriters and use its reasonable best efforts to permit the Securities
to be eligible for clearance and settlement through DTC.
(o) No
Stabilization. The Issuer will not take, directly or indirectly, any action designed to, or that could reasonably be expected
to, cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of the Securities.
(p) Use
of Proceeds. The Issuer will apply the net proceeds from the sale of the Securities as described in the Registration Statement,
the Time of Sale Information and the Prospectus under the heading “Use of Proceeds.”
(q) No
Sales in Colombia. Neither the Issuer nor any person acting on its behalf will solicit offers for, or offer or sell, the Securities
publicly in Colombia.
(r) Clear
Market. During the period from the date hereof through and including the date that is 30 days after the date hereof,
the Issuer will not, without the prior written consent of the Underwriters, offer, sell, contract
to sell or otherwise dispose of any debt securities in the international capital markets issued or guaranteed by the Issuer and having
a tenor of more than one year, except for the Securities sold to the Underwriters pursuant to this Agreement.
(s) Listing.
The Issuer will use its reasonable best efforts to effect and
maintain the listing of the Securities on the New York Stock Exchange.
5. Conditions
of the Underwriters’ Obligations. The obligations of the Underwriters to purchase the Securities as provided herein on the Closing
Date shall be subject to the performance by the Issuer of its obligations hereunder and to the following additional conditions:
(a) Effectiveness
of Registration Statement. The Registration Statement shall have become effective under the Securities Act and no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the Securities Act and no proceedings for
that purpose shall have been instituted or be pending or threatened by the Commission, any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters and the Issuer shall not have
received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf
registration statement form. The Preliminary Prospectus and the Prospectus shall have been filed with the Commission in accordance with
Rule 424(b) (or any required post-effective amendment providing such information shall have been filed and declared effective
in accordance with the requirements of Rule 430A).
(b) Representations
and Warranties. The representations and warranties of the Issuer contained herein shall be true and correct on the date hereof and
as of the Closing Date; the statements of the Issuer and its officials made in any certificates delivered pursuant to this Agreement shall
be true and correct on and as of the Closing Date.
(c) No
Downgrade. Subsequent to the Time of Execution, (i) no downgrading shall have occurred in the rating accorded to the Securities
or any other debt securities issued or guaranteed by the Issuer by any “nationally recognized statistical rating organization,”
as such term is defined in Section 3(a)(62) under the Exchange Act; and (ii) no such organization shall have publicly announced
that it has under surveillance or review or has changed its outlook with respect to (other than an announcement
with positive implications of a possible upgrading) its rating of the Securities or of any other debt securities issued or guaranteed
by the Issuer (other than an announcement with positive implications of a possible upgrade).
(d) No
Material Adverse Change. No event or condition of a type described in Section 1(i) hereof shall
have occurred or shall exist, which event or condition is not described in the Registration
Statement, the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus
(excluding any amendment or supplement thereto) and the effect of which, in the judgment of the Underwriters, makes it impracticable or
inadvisable to proceed with the offering, sale and delivery of the Securities on the Closing Date on the terms and in the manner contemplated
by this Agreement, the Registration Statement, the Time of Sale Information and the Prospectus.
(e) Officer’s
Certificate. The Issuer shall have furnished to the Underwriters a certificate of the Issuer, signed by the Chief Financial Officer
of the Issuer, or other senior official of the Issuer who has specific knowledge of the Issuer’s financial matters and is satisfactory
to the Underwriters, dated the Closing Date, to the effect that the signer of such certificate has
examined the Registration Statement, the Time of Sale Information and the Prospectus and any supplements or amendments thereto, and this
Agreement and that:
(i) the
Issuer has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose have
been instituted or threatened by the Commission;
(ii) the
Issuer has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of
the automatic shelf registration statement form;
(iii) the
representations and warranties of the Issuer in this Agreement are true and correct on and as of the Closing Date with the same effect
as if made on the Closing Date, and the Issuer has complied with all the agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date; and
(iv) since
the date of the most recent financial statements included in the Registration Statement, the Time of Sale Information and the Prospectus
(exclusive of any amendment or supplement thereto), there has not been a material adverse change in the condition (financial, economic,
fiscal, political or otherwise), prospects, earnings or properties of the Issuer and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set forth or contemplated in the Registration Statement, the Time
of Sale Information and the Prospectus (exclusive of any amendment or supplement thereto).
(f) Opinion
and Negative Assurance of U.S. Counsel for the Issuer. The Issuer shall have requested and caused Allen Overy Shearman Sterling U.S.
LLP, U.S. counsel for the Issuer, to furnish to the Underwriters its opinion and negative assurance letter, dated the Closing Date and
addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters, substantially to the effect set forth
in Annex A hereto.
(g) Opinion
and Negative Assurance of Colombian Counsel for the Issuer. The Issuer shall have requested and caused Brigard & Urrutia
Abogados S.A.S., Colombian counsel for the Issuer, to furnish to the Underwriters, its opinion and negative assurance letter, dated the
Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters, substantially to the
effect set forth in Annex B hereto.
(h) Opinion
and Negative Assurance of U.S. Counsel for the Underwriters. Underwriters shall have received from Milbank LLP, U.S. counsel for the
Underwriters, such opinion or opinions and negative assurance letter, dated the Closing Date and addressed to the Underwriters,
with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Information and the
Prospectus and other related matters as the Underwriters may reasonably require, and the Issuer shall have
furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(i) Opinion
and Negative Assurance Letter of Colombian Counsel for the Underwriters.
Underwriters shall have received from Gómez-Pinzón Abogados S.A.S., local counsel for
the Underwriters, such opinion or opinions and negative assurance letter, dated the Closing Date and addressed to the Underwriters, with
respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Information and the Prospectus
and other related matters as the Underwriters may reasonably require, and the Issuer shall have furnished to such counsel such documents
as they reasonably request for the purpose of enabling them to pass upon such matters.
(j) Comfort
Letters. On the date of this Agreement and on the Closing Date, Ernst & Young S.A.S. shall have furnished to the Underwriters,
at the request of the Issuer, letters dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Underwriters, containing statements and information of the type customarily
included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial
information contained in each of the Registration Statement, the Time of Sale Information and the Prospectus; provided that the
letter delivered on the Closing Date shall use a “cut-off” date no more than three Business Days prior to the Closing Date.
(k) Rating
Reports. S&P Global Ratings, Fitch Ratings Ltd. and Moody’s Investors Services Inc. shall have delivered to the Issuer and
the Underwriters a final rating letter with respect to the Securities setting forth the ratings contemplated
in the Final Term Sheet.
(l) Officer’s
Certificate Pursuant to Section 301 of the Indenture. The Issuer shall have furnished to the Underwriters and the Trustee a certificate
of the Issuer, dated the Closing Date, containing the information required by Section 301 of
the Indenture.
(m) Securities.
The Issuer and the Trustee shall have executed, authenticated and delivered the Securities.
(n) No
Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted
or issued by any governmental or regulatory authority that would, as of the Closing Date, prevent
the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that
would, as of the Closing Date, prevent the issuance or sale of the Securities.
(o) No
FINRA Objections. If the Registration Statement and/or the offering of the Securities has been filed with the Financial Industry Regulatory
Authority (“FINRA”) for review, FINRA shall not have raised any objection with respect to the fairness and reasonableness
of the underwriting terms and arrangements.
(p) DTC.
The Securities shall be eligible for clearance and settlement through DTC.
(q) Authorized
Agent. On or before the Closing Date, the Underwriters shall have received evidence of the agreement of Corporation
Service Company to act as the process agent of the Issuer, as described in Section 13 hereof.
(r) Other
Documents. Prior to the Closing Date, the Issuer shall have furnished to the Underwriters such further information,
certificates and documents as the Underwriters may reasonably request.
If any of the conditions specified in this Section 5
shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriters.
Notice of such cancellation shall be given to the Issuer in writing or by telephone or facsimile confirmed in writing.
6. Indemnification
and Contribution.
(a) Indemnification
of the Underwriters. The Issuer agrees to indemnify and hold harmless each Underwriter, its affiliates, directors, officers and employees
and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or other U.S. federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities
or actions in respect thereof arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to
Rule 430B, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a material fact included in the Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Information, the Prospectus or any Issuer Additional Written Communication
(or any amendment or supplement to any such document) or any omission or alleged omission in the Preliminary Prospectus, any Issuer Free
Writing Prospectus, the Time of Sale Information, the Prospectus or any Issuer Additional Written Communication (or any amendment or supplement
to any such document) of a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading, and in each case agrees to reimburse each such indemnified party,
as incurred, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Issuer will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission
made reliance upon and in conformity with any information relating to any Underwriter furnished to the Issuer in writing by such Underwriter
expressly for inclusion therein; it being understood and agreed that the only such information furnished by or on behalf of the Underwriters
consists of the information described as such in Section 12 hereof.
(b) Indemnification
of the Issuer. Each Underwriter agrees severally and not jointly to indemnify and hold harmless the Issuer and each of its directors,
officers and employees and each person who controls the Issuer within the meaning of the either the Securities Act or the Exchange Act
to the same extent as the foregoing indemnity to the Underwriters, but only with reference to written information relating to such Underwriters
furnished to the Issuer by or on behalf of the Underwriters specifically for inclusion in the Registration Statement, the Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Information, the Prospectus or any Issuer Additional
Written Communication (or in any amendment or supplement thereto); it being understood and agreed that the only such information furnished
by or on behalf of the Underwriters consists of the information described as such in Section 12 below. This indemnity agreement will
be in addition to any liability that the Underwriters may otherwise have.
(c) Notice
and Procedures. Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 6, notify
the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve
it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or
(b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying
party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to represent the indemnified party
in an action, the indemnified party shall have the right to employ separate counsel (including one local counsel per jurisdiction, in
each case reasonably acceptable to the indemnifying party), and the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if: (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action), unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) Contribution.
In the event that the indemnity provided in paragraph (a) or (b) of this Section 6 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Issuer and the Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending any
loss, claim, damage, liability or action) (collectively “Losses”) to which the Issuer and the Underwriters may be subject
in such proportion as is appropriate to reflect the relative benefits received (or anticipated to be received)
by the Issuer on the one hand and by the Underwriters on the other from the offering of the Securities; provided, however, that
in no case shall the Underwriters be responsible for any amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for
any reason, the Issuer and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Issuer on the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such Losses, as well as any other relevant equitable considerations. Benefits received (or anticipated to
be received) by the Issuer shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received
(or anticipated to be received) by it, and benefits received (or anticipated to be received) by the Underwriters shall be deemed to be
equal to the total purchase discounts and commissions. Relative fault shall be determined by reference to, among other things, whether
any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information
provided by the Issuer on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such untrue statement or omission. The Issuer and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation that does
not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 6, each person who controls
an Underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee, affiliate and
agent of the Underwriters shall have the same rights to contribution as such Underwriter, and each person who controls the Issuer within
the meaning of either the Act or the Exchange Act and each officer and director of the Issuer shall have the same rights to contribution
as the Issuer, subject in each case to the applicable terms and conditions of this paragraph (d).
(e) Non-Exclusive
Remedies. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights
or remedies that may otherwise be available to any indemnified person at law or in equity.
7. Termination.
This Agreement shall be subject to termination in the absolute discretion of the Underwriters (after consultation with the Issuer), by
notice given to the Issuer prior to delivery of and payment for the Securities, if at any time prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established
on such exchange; (ii) trading of any securities issued or guaranteed by the Issuer shall have been suspended on any exchange or
in any over-the-counter market; (iii) a change in the U.S., Colombian or international financial, political or economic conditions
or currency exchange rates or exchange controls as would, in the judgment of the Underwriters, be likely to prejudice materially and adversely
the success of the proposed issue, sale or distribution of the Securities, whether in the primary market or in respect of dealings in
the secondary market; (iv) a major disruption of the settlement or clearance of debt securities in the United States shall occur
and continue until at least the Business Day preceding the Closing Date, and such event shall make it impractical to proceed with the
closing, (v) a banking moratorium shall have been declared by Colombian, U.S. federal or New York State authorities; or (vi) there
shall have occurred any new outbreak or escalation of hostilities, declaration by the United States or Colombia of a national emergency
(other than those that have already been declared through the date hereof) or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Underwriters, impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated in the Registration Statement, the Time of Sale Information and the Prospectus (exclusive of any amendment
or supplement thereto).
8. Payment
of Expenses.
(a) Whether
or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, and exclusively upon written request
by the Underwriters, the Issuer agrees to reimburse the Underwriters upon request for reasonable and documented expenses that they
incur in connection with the transactions contemplated herein, subject to a maximum amount of U.S.$200,000 (the “Expense Cap”).
(b) In
the event that (i) this Agreement is terminated pursuant to Section 7 hereof, (ii) the Issuer for any reason fails to tender
the Securities for delivery to the Underwriters or (iii) the Underwriters decline to purchase
the Securities for any reason permitted under this Agreement, the Issuer agrees to reimburse the Underwriters
for all reimbursable expenses as described in clause (a) above, up to the Expense Cap.
(c) Except
to the extent set forth in clause (a) above, the Underwriters will pay for all roadshow expenses incurred
by the Issuer and the Underwriters, the fees and expenses of the Underwriters’ international and local legal counsel, as well as
all other out-of-pocket expenses of the Underwriters. These expenses will not be reimbursed by the Issuer.
9. Default
by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the
principal amount of Securities set forth opposite their names in Schedule I hereto bears to the aggregate principal amount of Securities
set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase; provided, however, that in the event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities
set forth in Schedule I hereto, the remaining non-defaulting Underwriters shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the Securities; provided further, however, that if within 24 hours after such default
by such defaulting Underwriter or Underwriters holding in excess of 10% of the aggregate principal amount of the Securities set forth
in Schedule I hereto, the remaining non-defaulting Underwriters shall not have agreed to purchase all of the Securities or arranged for
the purchase of such Securities by another party or parties satisfactory to the Issuer, then the Issuer shall be entitled to a further
period of 36 hours within which to procure another party or parties satisfactory to the Underwriters to purchase the Securities to be
purchased by such defaulting Underwriter or Underwriters and if no such party purchases such Securities, this Agreement will terminate
without liability to any non-defaulting Underwriter or the Issuer, except as provided in Sections 6 and 8 hereof. In the event of a default
by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Underwriters shall determine in order that the required changes in the Time of Sale Information, the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability,
if any, to the Issuer or any no defaulting Underwriter for damages occasioned by its default hereunder.
10. Successors;
Assignment. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and
the indemnified persons referred to in Section 6 hereof and their respective successors, and, except as expressly set forth herein,
no other person will have any right or obligation hereunder. Each Underwriter may transfer or assign, in whole or in part, its rights
under this Agreement to any of its affiliates, provided however, that pursuant to Article 2.2.1.5.9 of Decree 1068 of 2015, any transfer
or assignment of rights by the Underwriters prior to the Closing Date under this Agreement requires approval from the Issuer (such approval
not to be unreasonably withheld), and failure to obtain such approval may render unenforceable the relevant transfer or assignment.
11. Representations
and Indemnities to Survive. The respective agreements, representations, warranties, indemnities, rights of contribution of the Issuer
and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Underwriters or the Issuer or any of the indemnified persons referred to in Section 6 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections 6 and 8 hereof shall survive the termination or cancellation
of this Agreement.
12. Underwriters’
Information Provided by the Underwriters. The Issuer and the Underwriters acknowledge and agree that the only information relating
to the Underwriters that has been furnished to the Issuer in writing by the Underwriters expressly for use in the Registration Statement,
the Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto) consists of (i) their names on the front cover
of the Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto), (ii) the last paragraph on the front cover
of the Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto) relating to the delivery of the Securities and
(iii) under the heading “Underwriting” of each of the Preliminary Prospectus and the Prospectus, the second sentence
of the fourth paragraph, the fifth paragraph, the third sentence of the seventh paragraph, the tenth paragraph and the eleventh paragraph.
13. Jurisdiction.
(a) The
Issuer agrees that any suit, action or proceeding against the Issuer brought by any Underwriter, the directors, officers, employees and
agents of any Underwriter, or by any person who controls any Underwriter, arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any State or U.S. federal court in the City of New York and County of New York, and waives, to
the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such proceeding
in such courts, and irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Issuer
hereby appoints Corporation Service Company, presently located at 1133 Avenue of the Americas, Suite 3100, New York, New York
10036, as its authorized agent (the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated herein that may be instituted in any State or U.S. federal
court in the City of New York and County of New York, by any Underwriter, the directors, officers, employees, affiliates and agents of
any Underwriter, or by any person who controls any Underwriter, and expressly accepts the jurisdiction of any such court in respect of
any such suit, action or proceeding. The courts of the Republic of Colombia would give effect to and enforce a judgment obtained in a
court outside of the Republic of Colombia through a proceeding provided for under Colombian law known as “exequatur”, subject
to the provisions of (i) (a) Article 605 of Law 1564 of 2012 (Código General del Proceso), which require
that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the
Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General
del Proceso).
(b) The
Issuer hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for
service of process, and the Issuer agrees to take any and all action, including the filing of any and all documents that may be necessary
to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent
shall be deemed, in every respect, effective service of process upon the Issuer. Notwithstanding the
foregoing, any action arising out of or based upon this Agreement may be instituted by any Underwriter, the directors, officers, employees,
and agents of any Underwriter, or by any person who controls any Underwriter, in any court of competent jurisdiction in Colombia.
(c) The
Issuer irrevocably waives, to the fullest extent permitted by applicable law, any immunity (including sovereign immunity) from suit, action,
proceeding or jurisdiction to which it might otherwise be entitled in any such suit, action or proceeding
in any U.S. federal or New York State court in the Borough of Manhattan, the City of New York or in any competent court in Colombia; except
as provided under (i) Articles 192, 193 and 195 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso
Administrativo), as amended by Article 87 Law 2080 of 2021 and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012
(Código General del Proceso), pursuant to which the revenues, assets and property of the Issuer located in Colombia are
not subject to execution, set-off or attachment; provided, however, that under the laws of Colombia,
any suit, action, proceeding or jurisdiction for the collection of amounts ordered by or arising from collectable documents will be subject
to the rules set forth under Articles 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso
Administrativo), as amended by Articles 80, 81 and 87 of Law 2080 of 2021. Under the laws of Colombia, the regulations that govern
statutes of limitations and other time limits for any suit, action, proceeding or jurisdiction may not be waived by the Issuer. In addition,
to the extent that the Issuer or any of its revenues, assets or properties will be entitled, in any jurisdiction, to any immunity from
setoff, banker’s lien, attachment or any similar right or remedy, and to the extent that there will be attributed, in any jurisdiction,
such an immunity, the Issuer hereby irrevocably agrees not to claim and irrevocably waives such immunity to the fullest extent permitted
by the laws of such jurisdiction with respect to any claim, suit, action, proceeding, right or remedy arising out of or in connection
with the Agreement. The Issuer reserves the right to plead sovereign immunity under the United States Foreign Sovereign Immunities Act
of 1976, as amended, with respect to any action brought against it under the United States federal securities laws or any state securities
laws.
14. Additional
Amounts. If the compensation (including the Underwriters’ commissions and concessions) or any other amounts to be received by
the Underwriters under this Agreement including, without limitation, indemnification and contribution payments, as a result of entering
into this Agreement, are subject to any present or future taxes, levies, imposts, duties, assessments, deductions, withholdings or charges
of any nature imposed or levied by or on behalf of Colombia or any political subdivision thereof or taxing authority therein (including
the Issuer) (“Colombian Taxes”), then the Issuer shall pay to the Underwriters, an additional amount so that the Underwriters
shall retain, after taking into consideration all such Colombian Taxes, an amount equal to the amounts owed to it as compensation or otherwise
under this Agreement as if such amounts had not been subject to Colombian Taxes, provided, however, that no additional amounts
shall be paid in respect of (a) any taxes imposed due to some present or former connection of an Underwriter with Colombia or any
political subdivision thereof or taxing authority therein other than the mere entering into of this Agreement or receipt of payments hereunder
or (b) any taxes which would not have been imposed but for the failure of such Underwriter to comply with any reasonable certification,
identification or other reporting requirements concerning the nationality, residence, identity or connection with the relevant taxing
jurisdiction of the Underwriter if such compliance is required or imposed by law as a precondition to an exemption from, or reduction
in, such taxes, duties or other charges.
15. Currency.
Each reference in this Agreement to any monetary amount is to U.S. dollars (the “Relevant Currency”), and payment of
all amounts hereunder is of the essence. To the fullest extent permitted by law, the obligation of the Issuer in respect of any amount
due under this Agreement will, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged
only to the extent of the amount in the Relevant Currency that the party entitled to receive such payment may, in accordance with its
normal procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the Business Day immediately
following the day on which such party receives such payment. If the amount in the Relevant Currency that may be so purchased for any reason
falls short of the amount originally due, the Issuer will pay such additional amounts, in the Relevant Currency, as may be necessary to
compensate for the shortfall. Any obligation of the Issuer not discharged by such payment will, to the fullest extent permitted by applicable
law, be due as a separate and independent obligation and, until discharged as provided herein, will continue in full force and effect.
16. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted
and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to them at:
BBVA Securities Inc., 1345 Avenue of the Americas,
44th Floor, New York, New York 10105, Attention: Latam Debt Capital Markets (email: latamdcmny.group@bbva.com); J.P. Morgan Securities
LLC, 383 Madison Avenue, New York, New York 10179, Attention: Latin America Debt Capital Markets; and Santander US Capital Markets LLC,
437 Madison Ave, New York, New York 10022, Facsimile: +1 212-407-0930, Attention: Debt Capital Markets. Notices to the Issuer shall be
given to the Issuer at Ecopetrol S.A., Carrera 13 No. 36 - 24, Bogotá, D.C. - Colombia; Attention: Camilo Barco Muñoz,
Chief Financial Officer, and Maria Catalina Escobar Hoyos, Head of Capital Markets.
17. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement
is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
18. No
Fiduciary Duty. The Issuer hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is
an arm’s-length commercial transaction between the Issuer, on the one hand, and the Underwriters and any affiliate through which
it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Issuer and (c) the
Issuer’s engagement of the Underwriters in connection with the offering and the process leading up to the offering is as independent
contractors and not in any other capacity. Furthermore, the Issuer agrees that it is solely responsible for making its own judgments in
connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising the Issuer on related
or other matters). The Issuer agrees that it will not claim that the Underwriters have rendered advisory services, or owe an agency, fiduciary
or similar duty to the Issuer, in connection with such transaction or the process leading thereto. Any review by the Underwriters of the
Issuer, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Issuer.
19. Governing
Law. This Agreement has been delivered in New York, New York and this Agreement and shall be governed by and construed in accordance
with the laws of the State of New York, except that all matters governing the authorization and execution of this Agreement by the Issuer
shall be governed by and construed in accordance with the laws of Colombia.
20. Waiver
of Jury Trial. The Issuer and each of the Underwriters hereby irrevocably waive, to the fullest extent permitted by applicable law,
trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
21. Recognition
of the U.S. Special Resolution Regimes. In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject
to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this Agreement, and any
interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the
U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States
or a state of the United States. In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below)
of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this
Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could
be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the
United States. “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted
in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered
entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as
that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning
assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S.
Special Resolution Regime” means each of (x) the Federal Deposit Insurance Act and the regulations promulgated thereunder
and (y) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
22. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts
shall together constitute one and the same agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic
signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act
or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed
to have been duly and validly delivered and be valid and effective for all purposes.
23. Headings.
The section headings used herein are for convenience only and shall not affect the construction hereof.
24. Integration.
With the exception of the (i) Economic Bases Agreement between the Issuer and (A) BBVA, dated February 15, 2019 (as amended
on January 28, 2022), (B) J.P. Morgan, dated February 15, 2019 (as amended on January 25, 2022) and (C) Santander,
dated February 15, 2019 (as amended on January 19, 2022), and (ii) the Services Contracts between the Issuer and (A) BBVA,
dated August 8, 2024, (B) J.P. Morgan, dated August 16, 2024 and (C) Santander, dated August 16, 2024, this Agreement
supersedes all prior agreements and understandings (whether written or oral) between the Issuer and the Underwriters, or any of them,
with respect to the subject matter hereof.
25. Amendments
or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the parties hereto. Any amendments to this Agreement shall
be approved by the Colombian Ministry of Finance in accordance with Article 5 of Law 781 of 2002.
If the foregoing is in accordance with your understanding, please indicate
your acceptance of this Agreement by signing in the space provided below.
| | Very truly yours, |
| | |
| | ECOPETROL S.A. |
| | | |
| | | |
| By: | /s/ Ricardo Roa Barragán |
| | | Name: Ricardo Roa Barragán |
| | | Title: Chief Executive Officer |
[Signature
Page to Underwriting Agreement]
| Accepted on the
date first written above. |
|
| |
|
|
| BBVA
Securities Inc. |
|
| |
|
| |
|
|
| By: |
/s/
Surya Bhattacharjee |
|
| |
Name: |
Surya Bhattacharjee |
|
| |
Title: |
Managing Director |
|
| |
|
Latin America Debt Capital Markets |
|
| |
|
BBVA Securities Inc. |
|
[Signature
Page to Underwriting Agreement]
| Accepted on the
date first written above. |
|
| |
|
|
| J.P.
MORGAN SECURITIES LLC |
|
| |
|
| |
|
|
| By: |
/s/
Lane Feler |
|
| |
Name: Lane
Feler |
|
| |
Title:
Executive Director |
|
[Signature
Page to Underwriting Agreement]
| Accepted on the
date first written above. |
|
| |
|
|
| Santander
US Capital Markets LLC |
|
| |
|
| |
|
|
| By: |
/s/
Richard Zobkiw |
|
| |
Name: Richard
Zobkiw |
|
| |
Title:
Executive Director |
|
[Signature
Page to Underwriting Agreement]
Schedule I
| | |
| 7.750% Notes due 2032 | |
| Underwriters | |
| Principal
Amount of
Notes due 2032 to be Purchased | |
| BBVA Securities Inc. | |
| U.S.$ 583,334,000 | |
| J.P. Morgan Securities LLC | |
| U.S.$ 583,333,000 | |
| Santander US Capital Markets LLC | |
| U.S.$ 583,333,000 | |
| Total | |
| U.S.$ 1,750,000,000 | |
Schedule II
Free Writing Prospectus
Filed Pursuant to Rule 433
Registration Statement No. 333-278823
TERMS AND CONDITIONS AS OF OCTOBER 16, 2024
OF
ECOPETROL S.A.
U.S.$1,750,000,000 7.750% NOTES DUE 2032
| ISSUER: |
Ecopetrol S.A. |
| SECURITY: |
7.750% Notes due 2032 (the “Notes”) |
| RANKING: |
Senior, unsecured and unsubordinated obligations of the Issuer, ranking pari passu, without any preferences among themselves, with all of its other present and future unsecured and unsubordinated obligations that constitute its External Indebtedness (as defined in the prospectus). |
| PRINCIPAL AMOUNT: |
U.S.$1,750,000,000 |
| MATURITY: |
February 1, 2032 |
| ISSUE PRICE: |
99.744% (plus accrued interest, if any, from October 21, 2024). |
| INTEREST PAYMENT DATES: |
February 1 and August 1, commencing on February 1, 2025. |
| COUPON RATE: |
7.750% |
| YIELD TO MATURITY: |
7.800% |
| BENCHMARK TREASURY: |
UST 3.625% due September 30, 2031 |
| BENCHMARK TREASURY SPOT AND YIELD: |
98-06+ / 3.923% |
| SPREAD TO BENCHMARK TREASURY: |
T + 387.7 bps |
| PRICING DATE: |
October 16, 2024 |
| EXPECTED SETTLEMENT DATE: |
October 21, 2024 (T+3) |
| NET PROCEEDS BEFORE EXPENSES: |
U.S.$1,742,895,000, which is the amount after the underwriting discount, but before expenses. |
| CUSIP/ISIN: |
CUSIP: 279158AW9
ISIN: US279158AW93 |
| CLEARING: |
DTC / Euroclear / Clearstream |
| JOINT BOOK-RUNNING MANAGERS: |
BBVA Securities Inc.
J.P. Morgan Securities LLC
Santander US Capital Markets LLC |
| MINIMUM DENOMINATION: |
U.S.$1,000 and integral multiples of U.S.$1,000 in excess thereof |
| GOVERNING LAW: |
New York |
| FORMAT: |
SEC Registered |
| DAY COUNT: |
30/360 |
| OPTIONAL REDEMPTION PROVISIONS: |
Prior to December 1, 2031, at any time or
from time to time, in whole or in part, at the Issuer’s option at a make-whole premium based on Treasury Rate plus 50 basis points.
On or after December 1, 2031, at any time
or from time to time, in whole or in part, at the Issuer’s option at par. |
| WITHHOLDING TAX REDEMPTION PROVISIONS: |
At any time at the Issuer’s option if the Issuer becomes obligated to pay additional amounts under the Notes, in whole but not in part, at par. |
| EXPECTED RATINGS1: |
Ba1 / BB+ / BB+ (Moody’s / S&P / Fitch) |
| LISTING AND TRADING: |
New York Stock Exchange |
1A rating of securities is not a recommendation to buy,
sell or hold securities and may be subject to revision or withdrawal at any time.
The information herein supplements the preliminary prospectus supplement
and supersedes the information in the preliminary prospectus supplement to the extent inconsistent with the information in the preliminary
prospectus supplement.
Unless otherwise indicated, terms used but not defined herein have
the meanings assigned to such terms in the preliminary prospectus supplement.
The Issuer has filed a registration statement (including a prospectus
and preliminary prospectus supplement) with the U.S. Securities and Exchange Commission (the “SEC”) for the offering to which
this communication relates. Before you invest, you should read the prospectus and preliminary prospectus supplement in that registration
statement and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You
may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the Underwriters can arrange to
send you the prospectus if you request it by calling BBVA Securities Inc. toll-free at 1-800-422-8692, J.P. Morgan Securities LLC collect
at 1-212-834-4533 or Santander US Capital Markets LLC toll-free at 1-855-403-3636.
Under Rule 15c6-1 of the Securities Exchange Act of 1934, as
amended, trades in the secondary market generally are required to settle in one business day, unless the parties to a trade expressly
agree otherwise. Accordingly, purchasers who wish to trade notes prior to the business day before the settlement date will be required,
by virtue of the fact that the notes initially will settle on October 21, 2024, to specify alternative settlement arrangements to
prevent a failed settlement.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR
BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED
AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
Schedule III
ISSUER FREE WRITING PROSPECTUSES
1. Final
Term Sheet dated October 16, 2024, the form of which is set forth in Schedule II hereto.
Schedule IV
ISSUER ADDITIONAL WRITTEN COMMUNICATION
1. Electronic
roadshow, dated October, 2024.
 |
| |
599 Lexington Avenue
New York, NY 10022-6069
+1.212.848.4000 |
Annex A
October [•], 2024
BBVA Securities Inc.
1345 Avenue of the Americas, 44th Floor
New York, New York 10105
Santander US Capital Markets LLC
437 Madison Avenue
New York, New York 10022
J.P. Morgan Securities LLC
383 Madison Avenue, 6th Floor
New York, New York 10179
Ecopetrol S.A.
US$[•] [•]% Notes due 20[32]
Ladies and Gentlemen:
We have acted as U.S. counsel to Ecopetrol S.A.,
a Colombian mixed economy company (the “Company”), in connection with the purchase of US$[•] aggregate principal
amount of the Company’s [•]% Notes due 20[32] (the “Notes”), pursuant to the Underwriting Agreement, dated
October [•], 2024 (the “Underwriting Agreement”), among the Company and each of you. The Notes will be issued
pursuant to an Indenture, dated as of July 23, 2009, between the Company and The Bank of New York Mellon, as trustee (the “Trustee”),
as amended and supplemented by Amendment No. 1 to the Indenture, dated as of June 26, 2015, (the “Indenture”).
This opinion is furnished to you pursuant to Section 5(f) of the Underwriting Agreement.
In that connection, we have reviewed originals
or copies of the following documents:
| (a) | The Underwriting Agreement; |
| (c) | The Notes in global form as executed by the Company. |
AOSHEARMAN.COM
Allen Overy Shearman
Sterling US LLP is a limited liability partnership organized under the laws of the State of Delaware. Allen Overy Shearman Sterling US
LLP is affiliated with Allen Overy Shearman Sterling LLP, a limited liability partnership registered in England and Wales with registered
number OC306763 and with its registered office at One Bishops Square, London E1 6AD. It is authorized and regulated by the
Solicitors Regulation Authority of England and Wales (SRA number 401323). The term partner is used to refer to a member of
Allen Overy Shearman Sterling LLP or an employee or consultant with equivalent standing and qualifications. A list of the
members of Allen Overy Shearman Sterling LLP and of the non-members who are designated as partners is open to inspection at its registered
office at One Bishops Square, London E1 6AD.
The documents described in the foregoing clauses (a) through
(c) are collectively referred to herein as the “Opinion Documents”.
We have also reviewed the following:
| (a) | The automatic shelf registration statement on Form F-3ASR (File
No. 333- 278823) filed by the Company under the Securities Act of 1933, as amended (the
“Securities Act”), with the Securities and Exchange Commission (the “Commission”)
on April 19, 2024 (such registration statement as so amended at the time of effectiveness,
including the information deemed to be part thereof at the time of effectiveness pursuant
to Rule 430B under the Securities Act, and the documents incorporated by reference therein,
hereinafter referred to as the “Registration Statement”). |
| (b) | The base prospectus dated April 19, 2024 forming a part of the Registration Statement with respect to the offering from time
to time of the securities described therein (the “Base Prospectus”); |
| (c) | The preliminary prospectus supplement relating to the Notes, dated October [•], 2024 (the “Preliminary Prospectus
Supplement”) (the Base Prospectus, as amended and supplemented by the Preliminary Prospectus Supplement, in the form first filed
by the Company pursuant to Rule 424(b) under the Securities Act with the Commission, including the documents incorporated by
reference therein, hereinafter collectively referred to as the “Preliminary Prospectus”), and all the documents incorporated
by reference therein. |
| (d) | The free writing prospectus of the Company containing the final terms of the Notes, dated October [•], 2024, in the form
first filed by the Company pursuant to Rule 433 under the Securities Act with the Commission (the “Free Writing Prospectus”). |
| (e) | The final prospectus supplement relating to the Notes, dated October [•], 2024 (the “Final Prospectus Supplement”)
(the Base Prospectus, as amended and supplemented by the Final Prospectus Supplement, in the form first filed by the Company pursuant
to Rule 424(b) under the Securities Act with the Commission, including the documents incorporated by reference therein, hereinafter
collectively referred to as the “Prospectus”). |
| (f) | The officer’s certificate relating to the Notes, dated October [•], 2024, delivered by the Company to the Trustee
pursuant to Section 301 of the Indenture. |
| (g) | The originals or copies of the indentures, supplemental indentures, loan or credit agreements, leases, guarantees, mortgages, security
agreements, bonds, notes, other agreements or documents, orders, writs, judgments, injunctions, decrees, determinations and awards, listed
in Schedule A (the “Specified Documents”). |
| (h) | Originals or copies of such other records of the Company, certificates of public officials and officers of the Company and agreements
and other documents as we have deemed necessary as a basis for the opinions expressed below. |
As used herein, the term “General Disclosure
Package” means the Preliminary Prospectus, as amended and supplemented by the Free Writing Prospectus.
In our review of the Opinion Documents and other
documents, we have assumed:
(a) The
genuineness of all signatures.
(b) The
authenticity of the originals of the documents submitted to us.
(c) The
conformity to authentic originals of any documents submitted to us as copies.
(d) As
to matters of fact, the truthfulness of the representations made in the Underwriting Agreement and the other Opinion Documents and in
certificates of public officials and officers of the Company.
(e) That
each of the Opinion Documents is the legal, valid and binding obligation of each party thereto, other than the Company, enforceable against
each such party in accordance with its terms.
(f) That:
(i) The
Company is an entity duly organized and validly existing under the laws of the jurisdiction of its organization.
(ii) The
Company has power and authority (corporate or otherwise) to execute, deliver and perform, and has duly authorized, executed and delivered
(except to the extent Generally Applicable Law (as defined below) is applicable to such execution and delivery), the Opinion Documents
to which it is a party.
(iii) The
execution, delivery and performance by the Company of the Opinion Documents to which it is a party do not and will not:
(A) contravene
its estatutos or other organizational documents; or
(B) except
with respect to Generally Applicable Law, violate any law, rule or regulation applicable to it.
(g) That
the execution, delivery and performance by the Company of the Opinion Documents to which it is a party do not and will not result in any
conflict with or breach of any agreement or document binding on it (other than the Specified Documents).
(h) That,
except with respect to Generally Applicable Law, no authorization, approval, consent or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party is required for the due execution, delivery or performance by the
Company of any Opinion Document to which it is a party or, if any such authorization, approval, consent, action, notice or filing is required,
it has been duly obtained, taken, given or made and is in full force and effect.
We have not independently established the validity of the foregoing
assumptions.
“Generally Applicable Law” means
the federal law of the United States of America, and the law of the State of New York (including in each case the rules or regulations
promulgated thereunder or pursuant thereto), that a New York lawyer exercising customary professional diligence would reasonably be expected
to recognize as being applicable to the Company, the Opinion Documents or the transactions governed by the Opinion Documents. Without
limiting the generality of the foregoing definition of Generally Applicable Law, the term “Generally Applicable Law” does
not include any law, rule or regulation that is applicable to the Company, the Opinion Documents or such transactions solely because
such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Opinion Documents or any of its
affiliates due to the specific assets or business of such party or such affiliate.
The Registration Statement became automatically
effective under the Securities Act and any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b). On October [•], 2024, at approximately [•] a.m., the Commission’s
website did not indicate the existence of a stop order suspending the effectiveness of the Registration Statement.
Based upon the foregoing and upon such other investigation
as we have deemed necessary and subject to the qualifications set forth below, we are of the opinion that:
1. The
execution and delivery by the Company of each Opinion Document to which it is a party does not, and the performance by the Company of
its obligations thereunder and the consummation of the transactions contemplated thereby will not, (a) result in a violation of Generally
Applicable Law or (b) result in a breach of, a default under or the acceleration of (or entitle any party to accelerate) the maturity
of any obligation of the Company under, or result in or require the creation of any lien upon or security interest in any property of
the Company pursuant to the terms of, any Specified Document.
2. No
authorization, approval or other action by, and no notice to or filing with, any United States federal or New York governmental authority
or regulatory body is required for the due execution, delivery or performance by the Company of any Opinion Document to which it is a
party, except as have been obtained and are in full force and effect under the Securities Act or the Trust Indenture Act of 1939, as amended,
(the “Trust Indenture Act”), and as may be required under the securities or blue sky laws of any jurisdiction in the
United States in connection with the offer and sale of the Notes.
3. The
Underwriting Agreement has been duly executed and delivered by the Company to the extent such execution and delivery is a matter of New
York law.
4. The
Indenture has been duly executed and delivered by the Company to the extent such execution and delivery is a matter of New York law and
is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
5. The
Notes have been duly executed by the Company to the extent such execution is a matter of New York law and, when authenticated by the Trustee
in accordance with the Indenture and delivered and paid for as provided in the Underwriting Agreement, the Notes will be the legal, valid
and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of
the Indenture.
6. The
Company is not, and after the issuance of the Notes and the use of the proceeds therefrom as contemplated in the Prospectus will not be,
required to register as an investment company under the Investment Company Act of 1940, as amended (the “Investment Company Act”).
7. The
Indenture has been duly qualified under the Trust Indenture Act.
8. The
statements in the General Disclosure Package and the Prospectus under the caption “Description of the Notes”, insofar as such
statements constitute summaries of documents referred to therein, fairly summarize in all material respects the documents referred to
therein.
9. The
description of the U.S. federal income tax consequences set forth in the General Disclosure Package and the Prospectus under the caption
“Taxation - U.S. Federal Income Tax Considerations”, insofar as such description constitutes a statement of U.S. federal income
tax law or legal conclusions and subject to the limitations and conditions described therein, is accurate in all material respects.
10. Assuming
the validity of such action under the laws of Colombia, the waiver by the Company, pursuant to Section 13(c) of the Underwriting
Agreement, Section 113 of the Indenture and Section 19 of each of the Notes, respectively, of any immunity, including sovereign
immunity, from suit, action, proceeding or jurisdiction to which it may otherwise be entitled with respect to any action or proceeding
arising out of or with respect to the Underwriting Agreement, Indenture or the Notes, respectively, is valid and binding under the
laws of the State of New York and the federal law of the United States of America.
11. Assuming
the validity of such action under the laws of Colombia, under the laws of the State of New York relating to submission to jurisdiction,
the Company (i) has, pursuant to Section 13(a) of the Underwriting Agreement, Section 113 of the Indenture and Section 19
of each of the Notes, respectively, validly submitted to the jurisdiction of any New York state or United States federal court located
in The City of New York, New York, in any action or proceeding arising out of or with respect to the Underwriting Agreement, the Indenture
or the Notes, respectively, and (ii) has validly appointed Corporation Service Company as its authorized agent for the purposes described
in Section 13(a) of the Underwriting Agreement, Section 113 of the Indenture and Section 19 of each of the Notes,
respectively; and service of process effected in the manner set forth in Section 13(a) of the Underwriting Agreement, Section 113
of the Indenture and Section 19 of each of the Notes, respectively, will be effective to confer valid personal jurisdiction under
the laws of the State of New York in connection with any such action or proceeding.
Our opinions expressed above are subject
to the following qualifications:
(a) Our
opinions in paragraphs 4 and 5 are subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors’ rights generally (including without limitation all laws relating to fraudulent transfers) and
(ii) possible judicial action giving effect to governmental actions or foreign laws affecting creditors’ rights.
(b) Our
opinions in paragraphs 4 and 5 are also subject to the effect of general principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).
(c) Our
opinions are limited to (i) Generally Applicable Law and, (ii) in the case of our opinion in paragraph 6 above, the Investment
Company Act and (iii) in the case of our opinion in paragraph 7, the Trust Indenture Act, and we do not express any opinion herein
concerning any other law.
(d) To
the extent that the Company is now an agency or instrumentality of a foreign state that is entitled to immunity from jurisdiction of any
court or from legal process with respect to itself or its property, any waiver by the Company of such immunity is subject to the limitations
imposed by the United States Foreign Sovereign Immunities Act of 1976. We express no opinion as to the enforceability of any such waiver
at a time in the future when the Company that is not now such an agency or instrumentality shall become one.
(e) We
express no opinion with respect to the enforceability of any indemnity against any loss in converting into a specified currency the proceeds
or amount of a court judgment in another currency.
This opinion letter is delivered to you in connection
with your role as underwriters of the Notes. This opinion letter may not be used, circulated, quoted or relied upon by you for any other
purpose, or by anyone else, without our prior written consent. However, this opinion and the related 10b-5 letter may, without our further
written consent, be furnished, where it is reasonable to do so and without prior notice to us, (i) to respond to requests to review
such documents by governmental, regulatory or judicial authorities having valid jurisdiction over the underwriters and (ii) in connection
with the defense of any legal or regulatory proceeding or investigation arising out of the offer and sale of the Notes.
This opinion
letter speaks only as of the date hereof. We expressly disclaim any responsibility to advise you of any development or circumstance of
any kind, including any change of law or fact, that may occur after the date of this opinion letter and which might affect the opinions
expressed herein.
Very truly yours,
AAG/GGRR/MGA/DM
AES
SCHEDULE A
Common Terms Agreements, dated December 30, 2011, among Ecopetrol
S.A., as Borrower, Refineria de Cartagena S.A., The Bank of New York Mellon, as Intercreditor Agent, HSBC Bank PLC, as EKN Facility Agent,
Sumitomo Mitsui Banking Corporation, as SACE Facility Agent, BNP Paribas, as US-Exim Facility Agent, The Bank of Tokyo-Mitsubishi UFJ, LTD.,
as Commercial Facility Agent, Export-Import Bank of the United States and the Bank of Tokyo-Mitsubishi UFJ, LTD., Banco Bilbao Vizcaya
Argentaria, S.A., Banco Bilbao Vizcaya Argentaria, S.A. Milan Branch, HSBC Bank PLC, HSBC Bank USA, National Association, and Sumitomo
Mitsui Banking Corporation, as Commercial Lenders.
Commercial Facility Agreement, dated December 30, 2011, among
Ecopetrol S.A., as Borrower, The Bank of Tokyo-Mitsubishi UFJ, LTD, as Commercial Facility Agent, and The Bank of Tokyo-Mitsubishi UFJ,
LTD, Banco Bilbao Vizcaya Argentaria, S.A., HSBC Bank USA, National Association, and Sumitomo Mitsui Banking Corporation, as Commercial
Lenders.
EKN Facility Agreement, dated December 30, 2011, among Ecopetrol
S.A., as Borrower, HSBC Bank PLC, as EKN Facility Agent, and HSBC Bank PLC, as Guaranteed Lender.
SACE Facility Agreement, dated December 30, 2011, among Ecopetrol
S.A., as Borrower, and Sumitomo Mitsui Banking Corporation, as SACE Facility Agent, and SACE S.p.A., The Bank of Tokyo-Mitsubishi UFJ,
LTD, Banco Bilbao Vizcaya Argentaria, S.A. and Sumitomo Mitsui Banking Corporation, as SACE Guaranteed Lenders.
Credit Agreement, dated December 30, 2011, among Ecopetrol S.A.,
as Borrower, BNP Paribas, as US-Exim Facility Agent and Export-Import Bank of the United States.
Credit Agreement, dated December 30, 2011, among Ecopetrol S.A.,
as Borrower, BNP Paribas, as US-Exim Facility Agent, HSBC Bank USA, National Association, as US-Exim Facility Lender and Export-Import
Bank of the United States.
Omnibus Amendment to Finance Documents, dated December 12, 2017,
among Ecopetrol S.A., Refineria de Cartagena S.A., The Bank of New York Mellon, as Intercreditor Agent, HSBC Bank PLC, as EKN Facility
Agent, Sumitomo Mitsui Banking Corporation, as SACE Facility Agent, BNP Paribas, as US-Exim Facility Agent, the Bank of Tokyo-Mitsubishi
UFJ, LTD, as Commercial Facility Agent, Export-Import Bank of the United States, The Bank of Tokyo-Mitsubishi UFJ, LTD., as Commercial
Lender, Banco Bilbao Viscaya Argentaria S.A., as Commercial Lender, Banco Bilbao Vizcaya Argentaria S.A. Milan Branch, as Commercial Lender,
HSBC Bank PLC, as Commercial Lender, HSBC Bank USA, National Association, as Collateral Agent, HSBC Bank USA, National Association, as
Commercial Lender, Sumitomo Mitsui Banking Corporation, as Commercial Lender, HSBC Bank USA, National Association, as US-Exim Facility
Lender, SACE S.p.A., The Bank of Tokyo-Mitsubishi UFJ, LTD., as SACE Guaranteed Lender, Banco Bilbao Vizcaya Argentaria S.A. Milan
Branch, as SACE Guaranteed Lender, Sumitomo Mitsui Banking Corporation, as SACE Guaranteed Lender and AB Svensk Exportkredit, as Commercial
Lender and EKN Guaranteed Lender.
Loan Agreement, dated as of September 20, 2018, among Ecopetrol
S.A., as borrower, The Bank of Nova Scotia and Mizuho Bank, LTD., as Lenders, and The Bank of Nova Scotia, as Administrative Agent.
Master Loan Agreement, dated January 31, 2020, among Ecopetrol
S.A., as Borrower, and Sumitomo Mitsui Banking Corporation, as Lender.
Master Loan Agreement, dated March 17, 2020, among Ecopetrol S.A.,
as Borrower and BNP Paribas, as Lender.
Loan Agreement, dated as of August 17, 2021, among Ecopetrol S.A.,
as Borrower and Banco Bilbao Vizcaya Argentaria, S.A. New York Branch; Banco Santander, S.A.; JPMorgan Chase Bank, N.A., Mizuho Bank, Ltd.,
Sumitomo Mitsui Banking Corporation, The Bank of Nova Scotia, as Lenders.
Loan Agreement, dated as of August 17, 2021, among Ecopetrol S.A.,
as Borrower and Banco Santander, S.A., JPMorgan Chase Bank, N.A., Citibank, N.A., and The Bank of Nova Scotia, as Lenders.
Loan Agreement, dated as of December 19, 2022, among Ecopetrol
S.A., as Borrower, The Bank of Nova Scotia and Sumitomo Mitsui Banking Corporation, as Lenders, and UMB Bank, National Association, as
Administrative Agent.
Master Loan Agreement, dated as of January 10, 2022, among Ecopetrol
S.A., as Borrower, and Standard Chartered Bank, as Lender.
Loan Agreement, dated as of May 15, 2023, among Ecopetrol S.A.,
as Borrower, Banco Bilbao Vizcaya Argentaria, S.A. New York Branch and MUFG Bank, Ltd., as Lenders, and MUFG Bank Ltd., as Administrative
Agent.
Loan Agreement, dated as of September 7, 2023, among Ecopetrol
S.A., as Borrower, Deutsche Bank AG, Banco Inbursa, S.A., Institución de Banca Múltiple, Grupo Financiero Inbursa,
Banco Latinoamericano de Comercio Exterior, S.A., ICBC Standard Bank Plc, as Lenders, and Deutsche Bank Trust Company Americas, as
Administrative Agent, as amended by that certain Incremental Joinder Agreement, dated as of December 5, 2023, among Ecopetrol S.A.,
as Borrower, Ahli United Bank B.S.C., Banco Latinoamericano de Comercio Exterior, S.A. and Deutsche Bank AG, as Incremental Lenders, and
Deutsche Bank Trust Company Americas, as Administrative Agent.
Loan Agreement, dated as of April 12, 2024, among Ecopetrol, S.A.,
as Borrower, Itau Chile New York Branch, Bank of America, N.A., JPMorgan Chase Bank, N.A., Banco Bilbao Vizcaya Argentaria, S.A.
New York Branch, the Bank of Nova Scotia and Standard Chartered Bank (Hong Kong) Limited, as Lenders, and Banco Bilbao Vizcaya Argentaria,
S.A. New York Branch, as Administrative Agent.
Loan Agreement, dated as of September 30, 2024, between Ecopetrol,
S.A., as Borrower, and Sumitomo Mitsui Banking Corporation, as Lender, as amended by Amendment No. 1 dated as of October 4,
2024, between Ecopetrol, S.A., as Borrower, and Sumitomo Mitsui Banking Corporation, as Lender.
October [•], 2024
BBVA Securities Inc.
1345 Avenue of the Americas, 44th Floor
New York, New York 10105
Santander US Capital Markets LLC
437 Madison Avenue
New York, New York 10022
J.P. Morgan Securities LLC
383 Madison Avenue, 6th Floor
New York, New York 10179
Ecopetrol S.A.
US$[•] [•]% Notes due 20[32]
Ladies and Gentlemen:
We have acted as U.S. counsel to Ecopetrol S.A.,
a Colombian mixed economy company (the “Company”), in connection with the purchase of US$[•] aggregate principal
amount of the Company’s [•]% Notes due 20[32] (the “Notes”), pursuant to the Underwriting Agreement, dated
October [•], 2024 (the “Underwriting Agreement”), among the Company and each of you. This letter is furnished
to you pursuant to Section 5(f) of the Underwriting Agreement.
In such capacity, we examined copies of the automatic
shelf registration statement on Form F-3ASR (Registration No. 333- 278823) filed by the Company under the Securities Act of
1933, as amended (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”)
on April 19, 2024. As used herein, the term “Registration Statement” means such registration statement as so amended
at the time of effectiveness, including the information deemed to be part thereof at the time of effectiveness pursuant to Rule 430B(f) under
the Securities Act, and the documents incorporated by reference therein; the term “Base Prospectus” means the base prospectus
dated April 19, 2024, and forming a part of the Registration Statement with respect to the offering from time to time of the securities
described therein; the term “Preliminary Prospectus” means the Base Prospectus, as amended and supplemented by the
preliminary prospectus supplement relating to the Notes, dated October [•], 2024, in the form first filed by the Company pursuant
to Rule 424(b) under the Securities Act with the Commission, including the documents incorporated by reference therein; the
term “Prospectus” means the Base Prospectus, as amended and supplemented by the final prospectus supplement relating
to the Notes, dated October [•], 2024 (the “Final Prospectus Supplement”), in the form first filed by the
Company pursuant to Rule 424(b) under the Securities Act with the Commission, including the documents incorporated by reference
therein; the term “General Disclosure Package” means the Preliminary Prospectus, as amended and supplemented by the
free writing prospectus of the Company containing the final terms of the Notes, dated October [•], 2024, in the form first filed
by the Company as a free writing prospectus with the Commission; and the term “Applicable Time” means [•] p.m. New
York time on October [•], 2024.
We also reviewed and participated in discussions
concerning the preparation of the Registration Statement, the General Disclosure Package and the Prospectus with certain officers or employees
of the Company, with its local counsel and its auditors, and with your representatives. The limitations inherent in the independent verification
of factual matters and in the role of outside counsel are such, however, that we cannot and do not assume any responsibility for the accuracy,
completeness or fairness of any of the statements made in the Registration Statement, the General Disclosure Package or the Prospectus,
except as set forth in paragraphs 8 and 9 of our opinion letter addressed to each of you, dated the date hereof.
Subject to the limitations set forth in the immediately
preceding paragraph, we advise you that, on the basis of the information we gained in the course of performing the services referred to
above, in our opinion, (a) each of the documents incorporated by reference in the Prospectus (other than the financial statements
and other financial or reserve data contained or incorporated by reference therein or omitted therefrom, as to which we express no opinion),
at the time it was filed with the Commission, appears on its face to have been appropriately responsive in all material respects to the
requirements of the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations of the Commission thereunder,
and (b) each of the Registration Statement and the Prospectus (other than the financial statements and other financial or reserve
data contained or incorporated by reference therein or omitted therefrom and the Trustee’s Statement of Eligibility on Form T-1,
as to which we express no opinion) appears on its face to be appropriately responsive in all material respects to the requirements of
the Securities Act and the applicable rules and regulations of the Commission thereunder.
We further advise you that, subject to the limitations
set forth in the second preceding paragraph, on the basis of the information we gained in the course of performing the services referred
to above, no facts came to our attention which caused us to believe that (i) the Registration Statement (other than the financial
statements and other financial or reserve data contained or incorporated by reference therein or omitted therefrom and the Trustee’s
Statement of Eligibility on Form T-1, as to which we have not been requested to comment), as of the date of the Underwriting Agreement,
contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; (ii) the General Disclosure Package (other than the financial statements and other financial
or reserve data contained or incorporated by reference therein or omitted therefrom, as to which we have not been requested to comment),
as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Prospectus
(other than the financial statements and other financial or reserve data contained or incorporated by reference therein or omitted therefrom,
as to which we have not been requested to comment), as of the date of the Final Prospectus Supplement or the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
This letter is delivered to you in connection with
your role as underwriters of the Notes, and may not be used, circulated, quoted or relied upon by you for any other purpose, or by anyone
else, without our prior written consent. However, this letter and the related opinion letter may, without our further written consent,
be furnished, where it is reasonable to do so and without prior notice to us, (i) to respond to requests to review such documents
by governmental, regulatory or judicial authorities having valid jurisdiction over the underwriters and (ii) in connection with the
defense of any legal or regulatory proceeding or investigation arising out of the offer and sale of the Notes.
Very truly yours,
AAG/GGRR/MGA/DM
AES
Annex B
October [*], 2024
BBVA Securities Inc.
1345 Avenue of the Americas, 44th Floor
New York, New York 10105
J.P. Morgan Securities LLC.
383 Madison Avenue
New York, New York 10179
Santander US Capital Markets LLC.
437 Madison Avenue
New York, New York 10022
As Representatives of the Issuer
Ladies and Gentlemen,
We have acted as special Colombian
counsel to Ecopetrol S.A., a mixed economy company (sociedad de economía mixta) organized as a stock corporation (sociedad
anónima) under the laws of the Republic of Colombia (“Colombia”) (the “Issuer” or the
“Company”), in connection with the Issuer’s offering of U.S.$[*] aggregate principal amount of the Issuer’s
[*]% Notes due 20[32] (the “Securities”) pursuant to the Underwriting Agreement dated as of October [*], 2024
(the “Underwriting Agreement”), between the Issuer and yourselves. The Securities will be issued pursuant to the Indenture
(as defined herein). All capitalized terms not defined herein have such definitions as are specified in the Underwriting Agreement and
the Indenture (together, the “Agreements”).
This opinion is furnished
to you pursuant to Section [5(g)] of the Underwriting Agreement. We have considered the laws of Colombia, including its Constitution
and the relevant decrees, treaties, rules, regulations and codes, as of the date hereof, and have examined such documents and instruments
as we have deemed necessary to give this opinion, including the following:
a. The
automatic shelf registration statement of the Issuer in Form F-3ASR (File No. 333- 278823) filed on April 19, 2024 under
the Securities Act of 1933, as amended, with the Securities and Exchange Commission (the “Commission”) (the “Registration
Statement”);
b. The
base prospectus dated April 19, 2024 forming a part of the Registration Statement with respect to the offering from time to time
of the Issuer’s debt securities, guaranteed debt securities, common stock, and preferred stock (the “Base Prospectus”);
c. The
preliminary prospectus supplement to the Base Prospectus dated October [*], 2024 (the “Prospectus Supplement”)
and the issuer free writing prospectus identified in Schedule III of the Underwriting Agreement as the final term sheet, filed with the
Commission on October [*], 2024 (collectively, the “Pricing Disclosure Package”);
d. The
final prospectus supplement dated October [*], 2024 relating to the Securities (the “Final Prospectus Supplement”)
(the Base Prospectus, as supplemented by the Final Prospectus Supplement, in the form filed with the Commission, including the documents
incorporated by reference therein, the “Prospectus”);
e. The
Underwriting Agreement;
f. The
indenture dated as of July 23, 2009 (the “Indenture”), between the Issuer and the Bank of New York Mellon (the
“Trustee”). The Indenture was amended by Amendment No. 1 to the Indenture, dated as of June 26, 2015, between
the Company and the Trustee (“Amendment No. 1”);
g. The
form of the Securities to be executed on behalf of the Issuer;
h. The
officer’s certificate dated [*], 2024 delivered by the Issuer to the Trustee pursuant to Section 301 of the Indenture;
i. A
copy of the certificate of incorporation and legal representation of the Issuer as of October 7, 2024, issued by the Chamber of Commerce
of Bogotá;
j. A
copy of the Issuer’s bylaws in effect as of the date provided to us by the Company; and
k. Copies
of all relevant provisions of Colombian laws, decrees, directives and other governmental acts pertaining to the authorization of the issuance
and sale of the Securities, including:
| 1. | The Issuer’s board of directors’ secretary’s certificate concerning meeting dated September 27,
2024 authorizing the issuance and offering of the Securities; |
| 2. | The authorization granted by the MHCP pursuant to Resolution [*] dated [*], 2024 relating to the issuance
and sale of the Securities and the execution and performance of the documents required to consummate the transaction; |
| 3. | Opinion No. [2-2023-018257] from the MCHP dated [April 18, 2023] of the Issuer’s level
of liquidity, solvency and payment capacity to finance non-investment expenses; |
| 4. | The registration of the public external indebtedness before the Colombian Central Bank (Banco de la
República) by filing the Informe de Crédito Externo Otorgado a Residentes or the applicable External Indebtedness
report provided by the intermediary of the foreign exchange market used in such registration, resulting from the issuance of the Securities
under the Indenture and the Securities; and |
| 5. | Evidence of the publication of the Underwriting Agreement in the Sistema Electrónico para la
Contratación Pública – SECOP. |
In providing this opinion, we have
made the following assumptions: (a) the authenticity and genuineness of all signatures; (b) that all documents submitted to
us as copy or specimen documents conform to their originals; (c) the authenticity and completeness of the original documents from
which such copies were made; (d) that all documents submitted to us have not been amended or affected by any subsequent action not
disclosed or known to us; (e) that each of the parties to the Underwriting Agreement, the Indenture and the Securities (collectively,
the “Transaction Documents”), other than the Issuer, has the corporate power and authority to enter into and perform
each of the Transaction Documents, and that the Transaction Documents have been duly authorized, executed, and delivered by each of such
parties other than the Issuer.
We have relied, as to factual matters,
on representations, statements and warranties contained in the Underwriting Agreement, in the documents we have examined, and on the discussions
in which we have participated concerning the preparation of the Pricing Disclosure Package and the Prospectus with certain officers or
employees of the Company, with its counsels and its auditors and with your representatives. Also, we have examined such corporate records,
certificates and other documents, and such questions of law, as we considered necessary or appropriate for the purposes of this opinion.
The opinions herein are limited in all respects to the laws of Colombia as they stand at the date hereof and as they are currently interpreted.
We do not express any opinion on the laws of any jurisdiction other than Colombia.
Based on the foregoing
and upon such investigation as we have deemed necessary, we are of the opinion that:
1. The Issuer (i) is
a mixed economy company (sociedad de economía mixta) duly organized, validly existing and in good standing under the laws
of Colombia, is qualified to do business in Colombia where its ownership or lease of property or the conduct of its businesses requires
such qualification, and (ii) has all power and authority necessary to own, operate or hold its properties that are material to its
business and to conduct the businesses as described in the Prospectus. To the best of our knowledge, no action has been taken to dissolve
or wind up the business affairs of the Company.
2. The execution,
delivery and performance by the Issuer of its obligations under the Agreements and the Securities have been duly authorized by all necessary
action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action.
3. The Agreements
have been duly authorized, executed, issued and delivered by the Issuer, and, assuming due authorization, execution and delivery thereof
by the Underwriters and the Trustee, constitutes valid and legally binding obligations of the Issuer enforceable in accordance with their
respective terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), moratorium or other similar laws or general principles of equity relating to or affecting enforcement
of creditors' rights generally.
4. The Securities
have been duly authorized, executed, issued and delivered by the Issuer in accordance with the Indenture and, assuming due authentication
and delivery by the Trustee (and assuming that the Securities constitute valid and legally binding obligations under the laws of the State
of New York, and are issued and delivered against payment of the purchase price therefor), the Securities will constitute valid and legally
binding obligations of the Issuer, enforceable in accordance with their respective terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency, moratorium (including, without limitation, all laws relating to fraudulent transfers) or other similar laws
relating to or affecting enforcement of creditor's rights generally, or by general principles of equity, and will be entitled to the benefits
of the Indenture.
5. The execution,
delivery and performance by the Issuer of the Agreements and the Securities do not conflict with or violate in any material respect and
will not, whether with or without the giving of notice or lapse of time, or both, constitute a material breach of or default under (i) the
Issuer's charter and by-laws, or (ii) to our knowledge, any material agreement or other material instruments to which the Issuer
is a party, or (iii) to the best of our knowledge, any judgment or decree or any order or similar authority binding upon the Issuer
or any provision, or (iv) any law, statute, rule or regulation of any public, governmental or regulatory agency or body in Colombia.
We do not express any opinion, however, as to whether the execution, delivery or performance by the Issuer of the Agreements or other
documents related to the transaction will constitute a violation of or a default under, any covenant, restriction or provision with respect
to financial ratios or tests or any aspect of the financial condition or results of operations of the Issuer or any document not governed
by Colombian law.
6. No consent,
approval (including exchange control approval), authorization, order, registration or qualification of or with any court or Governmental
Agency or other regulatory body in Colombia is required for (A) the due execution, delivery and performance by the Issuer of the
Agreements or the Securities, (B) the validity or enforceability against the Issuer of the Agreements or the Securities, or (C) the
issue, sale or delivery of the Securities, except for each of the approvals, authorizations and other documents referred to in Section 1(t) of
the Underwriting Agreement and Paragraph (k) hereof.
7. No Colombian
stamp, registration, documentary or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes
or duties are payable by or on behalf of the Underwriters, assuming that the Underwriters are not Colombian Residents for tax purposes,
or the beneficial owners of the Securities, to Colombia or any political subdivision or taxing authority thereof or therein in connection
with the sale and delivery by the Issuer of the Securities to the Underwriters or the sale and delivery by the Underwriters of the Securities
as contemplated in the Underwriting Agreement, provided that the Securities constitute a non-Colombian public credit operation,
the Underwriters are not Colombian residents for tax purposes, the Securities will be sold and delivered outside of Colombia and the Securities
are held by a non-resident and non-domiciliary of Colombia.
8. Under the laws
of Colombia, neither the Issuer nor any of its property or assets is entitled to sovereign or other immunity from suit, execution, attachment
or other legal process in Colombia, except as provided under (i) Articles 192, 193 and 195 of Law 1437 of 2011 (Código
de Procedimiento Administrativo y de lo Contencioso Administrativo) as amended by Article 87 of Law 2080 of 2021; and (ii) Articles
593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso), pursuant to which the revenues, assets and
property of the Issuer located in Colombia are not subject to execution, setoff or attachment; provided, however, that under the
laws of Colombia, any suit, action, proceeding or jurisdiction for the collection of amounts ordered by or arising from collectable documents
pursuant to Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo) will be subject
to the rules set forth under Articles 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso
Administrativo) as amended by Articles 80, 81 and 87 of Law 2080 of 2021. Under the laws of Colombia, the regulations that govern
statutes of limitations and other time limits for any suit, action, proceeding or jurisdiction may not be waived by the Issuer.
9. Pursuant to
articles 605 through 607 of Law 1564 of 2012 (Código General del Proceso), the Colombian courts will recognize and enforce
a foreign judgment without reconsiderations of its merits provided the foreign judgement satisfies the following requirements(a) that
there is an international treaty or convention relating to recognition and enforcement of foreign judgments between Colombia and the country
of origin of the judgment or, in the absence of such treaty, that proper evidence is provided to the Supreme Court of Colombia to the
effect, that in the courts of the country of the subject judgment there is reciprocity and therefore such courts would recognize and enforce
Colombian judgments, and (b) that the subject judgment fulfills the requirements listed below. In order to enforce a foreign judgment
in Colombia, it must first be submitted to “Exequatur” proceedings in accordance with articles 606 and 607 of Law 1564 of
2012 (Código General del Proceso), before the Supreme Court of Colombia which, in addition to the issue referred to in (a) above,
must examine whether the following requirements have been fulfilled: (A) such foreign judgment does not refer to in rem rights on
assets located within Colombian territory at the commencement of the proceedings in the foreign court which issued the judgment; (B) such
foreign judgment does not conflict with public order laws of Colombia, except procedural laws; (C) such foreign judgment is final
and not subject to appeal, according to the laws of the country where it was made; (D) a duly legalized copy of the judgment (together
with an official translation into Spanish if the judgment is issued in a foreign language) has been presented to a competent court in
Colombia; (E) no proceedings are pending before Colombian courts with respect to the same subject matter, or final judgment has been
awarded by a Colombian Court in any proceedings on the same subject matter; (F) the subject matter of such foreign judgment is not
of the exclusive jurisdiction of a Colombian court or judge; (G) in the proceedings in which such foreign judgment was made, the
defendant was properly served according to the laws of such jurisdiction and given an opportunity to defend the action in question and
(H) the exequatur requirement has been observed. In any case, enforceability decisions are considered by Supreme Court of Justice
of Colombia in a case-by-case basis.
10. Each of the
Agreements and the Securities is in proper legal form under the laws of Colombia for the enforcement thereof in Colombia against the Issuer,
provided that under the laws of Colombia, the choice of New York law as the governing law would be recognized by the courts of Colombia
subject to the proof of the provisions of applicable New York law in the manner provided for in such proceedings in Colombia.
11. To the best
of our knowledge, except as described in the Prospectus, there are no legal, governmental or regulatory investigations, actions, suits
or proceedings pending to which the Issuer is or may be a party or to which any property of the Company is or may be the subject that,
individually or in the aggregate, if determined adversely to the Company, would, individually or in the aggregate, have a Material Adverse
Effect; and to the best of our knowledge, no such investigations, actions, suits or proceedings are threatened or contemplated by any
governmental or regulatory authority or threatened by others.
12. The statements
in the Final Prospectus Supplement under the headings “Risk Factors”, “Exchange Rates and Controls”, “Description
of the Notes – The Indenture”, “Taxation - Certain Colombian Tax Considerations” and “Enforcement of Civil
Liabilities”, to the extent that they constitute matters of law or regulation or legal conclusions, fairly summarize the matters
described therein in all material respects.
13. The choice
of law of the State of New York as the governing law of the Agreements and the Securities is a valid choice of law under the laws of Colombia,
except that all matters governing authorizations and execution shall be governed by the laws of Colombia. Subject to compliance with certain
Colombian evidentiary requirements, the courts of Colombia shall honor this choice of law; provided, that the primary obligations arising
from the Agreements and the Securities are performed outside Colombia; the Agreements and the Securities do not contravene Colombian provisions
of public policy; and provided, further, that the application of New York law will be preempted by applicable Colombia law in matters
of bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and laws of general applicability relating to or affecting
enforcement of creditors’ rights generally or to general principles of equity; the submission by the Issuer to the non-exclusive
jurisdiction of the U.S. federal or state courts sitting in the Borough of Manhattan, The City of New York in the Agreements constitutes
a valid and legally binding obligation of the Issuer, and service of process effected in the manner set forth in the Agreements assuming
validity under the laws of the State of New York, will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction
over the Issuer.
14. The payment
obligations of the Issuer under the Agreements and the Securities will rank pari passu in priority of payment, in right of security and
in all other respects with all other existing and future unsubordinated and unsecured External Indebtedness (as defined in the Indenture)
of the Issuer. We note that under Colombian applicable laws most unsecured transactions and unsubordinated claims rank without any preferred
status, except for certain obligations which are granted preferential treatment pursuant to the generally applicable laws of Colombia,
such as judicial fees established in favor of creditors, tax obligations or labor obligations.
15. It is not necessary
under the laws of Colombia, in order to enable the Underwriters to enforce any of their rights under the Agreements that the Underwriters
should be licensed, qualified or entitled to carry on business in Colombia.
Although we assume no responsibility
for the accuracy, completeness or fairness of the Prospectus as well as the Pricing Disclosure Package (except as expressly provided above)
and we make no representation that we have independently verified the accuracy, completeness and fairness of such statements (except as
aforesaid), nothing has come to our attention that would lead us to believe that (i) the Registration Statement (except for the financial
statements and schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which we need
make no statement) as of the date of the Underwriting Agreement, contained any untrue statement of a material fact or omitted to state
any material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; (ii) the Pricing Disclosure Package (except for the
financial data included or incorporated by reference therein or omitted therefrom, as to which we need make no statement) as of the Applicable
Time, contained any untrue statement of a material fact or omitted to state any material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; and (iii) the Prospectus (except for the financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which we need make no statement) as of its date and the date hereof, contained
or contains any untrue statement of a material fact or omitted or omits to state any material fact or omitted or omits to state any material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
Furthermore, we express no
opinion as to whether a court in any proceeding in Colombia would give effect to certain provisions that may be limited by: (i) applicable
procedural rules that do not allow waivers of immunity and service of process by private companies within Colombia and pursuant to
which any immunity from proceedings (jurisdiction, execution or attachment) which might in the future be available under Colombian law
may not be validly waived in advance; and (ii) the unavailability under Colombian law of equitable remedies or injunctive relief,
except for fundamental constitutional rights. The foregoing opinions are subject to the following comments and qualifications:
a) We express no opinion as
to whether a court in Colombia would give effect to the late interest provisions of the Securities, providing for payment of interest
on past due amounts of interest.
b) Pursuant to Article 13
of Law 1564 of 2012 of Colombia (Código General del Proceso), civil procedure rules are considered public order laws
and therefore cannot be modified or waived by private agreements. To the extent that the parties to the Agreements commence enforcement
actions before Colombian courts instead of commencing them in foreign courts (which final rulings may subsequently be enforced in Colombia
through exequatur proceedings as described above), any waivers made by the parties to the Agreements and the Securities in respect
of Colombia's rules of civil procedure may be rendered unenforceable.
c) In any proceeding in Colombia,
service of notice to the parties thereto must be made in accordance with the provisions of Law 1564 of 2012 of Colombia (Código
General del Proceso). Contractual provisions regarding services of notice procedures will not be enforceable.
d) In any proceeding in Colombia
in which a law of a foreign country were to be applied, there should be evidence of the law sought to be applied, through (i) a copy
of such law duly issued and promulgated by the competent authorities of the foreign country, by the Colombian consul in the foreign country
or the foreign consul in Colombia or, (ii) by means of an expertise issued by a person or institutions expert in the law of a foreign
country or, (iii) when a written law does not exist, through the deposition or affidavit of two or more lawyers admitted in the relevant
jurisdiction regarding such applicable law, in accordance with article 177 of Law 1564 of 2012 of Colombia (Código General del
Proceso).
e) Pursuant to Article 251
of Law 1564 of 2012 of Colombia (Código General del Proceso), in order for a document written in a language different from
Spanish to be admissible evidence before a Colombian Court, the relevant document must be translated into Spanish either by Colombia’s
Ministry of Foreign Affairs, by an official translator (intérprete oficial), or by a translator appointed by the competent
judge.
Compliance with the Hague
Convention (known as Apostille) concerning the legalization of documents executed abroad (outside Colombia), is also required.
Furthermore, pursuant to Article 823
of Colombia's Code of Commerce (Código de Comercio): (i) the technical and usual terms contained within documents to
be used as evidence of commercial agreements and obligations, or that refer to the performance and execution of such agreements and obligations,
will be understood as in their meaning in Spanish, and (ii) the Spanish version of a document used to evidence obligations or contracts
which most closely resembles the original text shall prevail over the foreign language version of such document. In the event that a party
to an enforcement action considers that the available translation into Spanish of documents written in a foreign language is not accurate,
such party has the right to object to any such inaccuracy in such enforcement proceedings.
f) The enforcement of the
Agreements and the Securities may be limited by, and any proceeding for enforcement in Colombia would be subject to the statute of limitations.
Pursuant to Article 2514 of Colombia's Civil Code (Código Civil), a waiver to the statute of limitations can only be
granted once the relevant statute of limitations has elapsed.
g) In accordance with Article 902
of Colombia's Code of Commerce (Código de Comercio), any nullification of a provision of an Agreement or the Securities
would nullify the entire document as if the parties would not have entered into such document in the absence of such nullified provision.
h) According to Colombian
laws, the laws applicable to a given agreement are those in existence at the time of execution, even if those laws change in the future,
provided that the changes are not related to, or do not affect, public order laws, which are applicable to a given agreement in their
existing form.
i) Colombian exchange control
regulations are deemed to be public order laws, therefore, the ability of the Issuer to perform its obligations payable in foreign currency
under the Securities (and the ability of any person to remit the proceeds of any judgment award issued by a court in Colombia in foreign
currency out of Colombia) will be subject to foreign exchange regulations in effect at the time of the relevant payment or remittance.
j) The provisions of the Agreements
and the Securities which treat certain determinations as conclusive may be subject to review in a proceeding in Colombia to determine
the correctness of such determinations.
k) Under Colombian Law, charging
interest on interest (whether accrued or unpaid) is not permitted unless such interest is charged as permitted under Article 886
of Colombia's Code of Commerce (Código de Comercio).
l) Except for some constitutional
actions, Colombian law does not contemplate the equitable or injunctive remedies or reliefs. However, under Colombia law (mainly Laws
1437 of 2011 and 1564 of 2012) a court may order any precautionary measure it deems necessary in order to provisionally protect and guarantee
the subject matter of the dispute and the eventual fulfillment or enforcement of its ruling. That is so for litigation involving state
entities (such as the Issuer) and for civil cases.
m) The enforceability of the
obligations of the Issuer under the Securities may be limited by laws governing the bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium, liquidation or other similar laws relating to or affecting enforcement
of creditors’ rights generally, and is subject to statutory preferences granted under Colombian laws (including labor, pensions
and tax claims), and by claims which have, without any agreement, notarization or other voluntary act, priority for payment by operation
of law.
n) The financial conditions
of the issuance and sale of the Securities must be determined in accordance with Article 16 (c) and (h) of Law 31 of 1992
and the regulations of the Colombian Central Bank (Banco de la República), including External Resolutions No. 1 of
2018 and No. 17 of 2015, and External Circular DODM-145 of 2015 issued by the board of directors of the Colombian Central Bank (Banco
de la República), as applicable, as amended or supplemented. Failure to observe these conditions may result in an economic
sanction, and may additionally affect the enforcement of any provisions disregarding such restrictions in Colombia, in accordance with
articles 150(16) of the Colombian Constitution, 16 of the Colombia’s Civil Code (Código Civil), and 6.12.1.1.1 of
Decree 2555 of 2010.
o) A final and conclusive
judgment (not subject to appeal) of the courts of the State of New York for the payment of money rendered against the Issuer in respect
of the Securities, would be recognized by the courts of Colombia, subject to obtaining the Exequatur of the judgment from the Supreme
Court of Colombia (Corte Suprema de Justicia de la República de Colombia), as described above.
p) Any proceeding to enforce
a judicial decision by means of seizure, attachment or execution against assets or property, or against any right or interest in assets
or properties located in Colombia, is subject to the exclusive jurisdiction of the Colombian courts.
q) Pursuant to Articles 74
and 87 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo), the authorization
issued through Resolution [*] dated [*] by the Ministry of Finance and Public Credit (Ministerio de Hacienda y Crédito Público)
are not subject to “recurso de apelación” and these authorizations will produce immediate legal effects upon
their publication. The “acciones de nulidad” provided for by Title III of Part II of said Law may be attempted
or initiated to claim the nullity of the authorizations.
r) Pursuant to Articles 15
and 16 of Colombia’s Civil Code (Código Civil), the waiver of immunity granted under applicable sections of the Agreements
and the Securities is permissible provided that said waiver only affects the rights of the waiving party and taking into account the exceptions
and limitations to grant such waiver as indicated herein and in the Transaction Documents. Under Colombian law any immunity from proceedings
which might be available in the future cannot be validly waived in advance.
s) Pursuant to Article 5
of Law 781 of 2002, any amendment to any of the Agreements and the Securities requires prior approval by the Ministry of Finance. Furthermore,
pursuant to Article 2.2.1.5.9 of Decree 1068 of 2015, any transfer or assignment of rights by the Trustee, Underwriters or relevant
party under the Transaction Documents requires approval from the Issuer and failure to obtain such approval may render unenforceable the
relevant transfer or assignment.
t) In rendering our opinion
and making the statements herein, whenever an opinion is qualified by “to our knowledge” or similar words, it is intended
to mean that no information has come to our attention during the course of our advice to the Issuer that gives us actual knowledge of
the inaccuracy of such opinion or statement.
We are qualified to practice
law in Colombia, and we express no opinion herein as to any laws of any jurisdiction other than the laws of Colombia. We are furnishing
this letter to you solely for your benefit in connection with the offering of the Securities. This opinion is solely for your benefit
and may not be relied upon in any manner or any purpose by any other person.
We assume no obligation to
update or supplement this opinion to reflect any facts or amendments to the documentation on which we have expressed reliance which may
hereafter come to our attention or any changes in the law which may hereafter occur. Notwithstanding the foregoing, you may disclose the
contents of this letter to any person to whom disclosure is required to be made by law or court order, for purposes of establishing a
due diligence defense, or if such disclosure is necessary to defend or resist an action or claim in connection with the performance of
your obligations under the Underwriting Agreement.
Very truly yours,
BRIGARD & URRUTIA ABOGADOS S.A.S.
Exhibit 5.1
599 Lexington Avenue
New York, NY 10022-6069
+1.212.848.4000
October 21, 2024
Ecopetrol S.A.
Carrera 13 No. 36-24
Bogota, Republic of Colombia
Ecopetrol S.A.
US$1,750,000,000
7.750% Notes due 2032
Ladies and Gentlemen:
We have acted as counsel to Ecopetrol S.A., a Colombian mixed economy
company (the “Company”), in connection with the purchase of US$1,750,000,000 aggregate principal amount of the Company’s
7.750% Notes due 2032 (the “Notes”), pursuant to the Underwriting Agreement, dated October 16, 2024 (the “Underwriting
Agreement”), among the Company and BBVA Securities Inc., Santander US Capital Markets LLC and J.P. Morgan Securities LLC. The
Notes will be issued pursuant to an Indenture, dated as of July 23, 2009, between the Company and The Bank of New York Mellon, as trustee
(the “Trustee”), as amended and supplemented by Amendment No. 1 to the Indenture, dated as of June 26, 2015 (the “Indenture”).
In that connection, we have reviewed originals or copies of the following
documents:
| (a) | The Underwriting Agreement; |
| (c) | The Notes in global form as executed by the Company. |
The documents described in the foregoing clauses
(a) through (c) are collectively referred to herein as the “Opinion Documents”.
We have also reviewed such other records of the Company,
certificates of public officials and officers of the Company, and agreements and other documents as we have deemed necessary as a basis
for the opinion expressed below.
In our review of the Opinion Documents and other
documents, we have assumed:
(a) The
genuineness of all signatures.
(b) The
authenticity of the originals of the documents submitted to us.
(c) The
conformity to authentic originals of any documents submitted to us as copies.
| AOSHEARMAN.COM |
| |
| Allen Overy Shearman Sterling US LLP is a limited liability partnership organized under the laws of the State of Delaware. Allen Overy Shearman Sterling US LLP is affiliated with Allen Overy Shearman Sterling LLP, a limited liability partnership registered in England and Wales with registered number OC306763 and with its registered office at One Bishops Square, London E1 6AD. It is authorized and regulated by the Solicitors Regulation Authority of England and Wales (SRA number 401323). The term partner is used to refer to a member of Allen Overy Shearman Sterling LLP or an employee or consultant with equivalent standing and qualifications. A list of the members of Allen Overy Shearman Sterling LLP and of the non-members who are designated as partners is open to inspection at its registered office at One Bishops Square, London E1 6AD. |
(d) As
to matters of fact, the truthfulness of the representations made in the Underwriting Agreement and the other Opinion Documents and in
certificates of public officials and officers of the Company.
(e) That
each of the Opinion Documents is the legal, valid and binding obligation of each party thereto, other than the Company, enforceable against
each such party in accordance with its terms.
(f) That:
(i) The
Company is an entity duly organized and validly existing under the laws of the jurisdiction of its organization.
(ii) The
Company has power and authority (corporate or otherwise) to execute, deliver and perform, and has duly authorized, executed and delivered
(except to the extent Generally Applicable Law (as defined below) is applicable to such execution and delivery), the Opinion Documents
to which it is a party.
(iii) The
execution, delivery and performance by the Company of the Opinion Documents to which it is a party do not and will not:
(A) contravene
its estatutos or other organizational documents; or
(B) except
with respect to Generally Applicable Law, violate any law, rule or regulation applicable to it.
(g) That
the execution, delivery and performance by the Company of the Opinion Documents to which it is a party do not and will not result in any
conflict with or breach of any agreement or document binding on it (other than the documents specified in Schedule A).
(h) That,
except with respect to Generally Applicable Law, no authorization, approval, consent or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party is required for the due execution, delivery or performance by the
Company of any Opinion Document to which it is a party or, if any such authorization, approval, consent, action, notice or filing is required,
it has been duly obtained, taken, given or made and is in full force and effect.
We have not independently established the validity
of the foregoing assumptions.
“Generally Applicable Law” means
the federal law of the United States of America, and the law of the State of New York (including in each case the rules or regulations
promulgated thereunder or pursuant thereto), that a New York lawyer exercising customary professional diligence would reasonably be expected
to recognize as being applicable to the Company, the Opinion Documents or the transactions governed by the Opinion Documents. Without
limiting the generality of the foregoing definition of Generally Applicable Law, the term “Generally Applicable Law” does
not include any law, rule or regulation that is applicable to the Company, the Opinion Documents or such transactions solely because such
law, rule or regulation is part of a regulatory regime applicable to any party to any of the Opinion Documents or any of its affiliates
due to the specific assets or business of such party or such affiliate.
Based upon the foregoing and upon such other investigation
as we have deemed necessary and subject to the qualifications set forth below, we are of the opinion that the Notes have been duly executed
by the Company to the extent such execution is a matter of New York law and, when authenticated by the Trustee in accordance with the
Indenture and delivered and paid for as provided in the Underwriting Agreement, the Notes will be the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture.
Our opinion expressed above is subject to the following
qualifications:
1.
Our opinion above is subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors’ rights generally (including without limitation all laws relating to fraudulent transfers) and (ii) possible
judicial action giving effect to governmental actions or foreign laws affecting creditors’ rights.
2.
Our opinion above is also subject to the effect of general principles of equity, including without limitation concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).
3.
Our opinion is limited to Generally Applicable Law and we do not express any opinion herein concerning any other law.
This opinion letter speaks only as of the date hereof.
We expressly disclaim any responsibility to advise you of any development or circumstance of any
kind, including any change of law or fact, that may occur after the date of this opinion letter and which might affect the opinions expressed
herein.
We hereby consent to the filing of this opinion letter
as an exhibit to the Current Report on Form 6-K dated the date hereof filed by the Company with the Securities and Exchange Commission
(the “Commission”) and incorporated by reference into the automatic shelf registration statement on Form F-3ASR (File
No. 333- 278823) filed by the Company under the Securities Act of 1933, as amended (the “Securities Act”), with the
Commission on April 19, 2024 (such registration statement as so amended at the time of effectiveness, including the information deemed
to be part thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act, and the documents incorporated by reference
therein, hereinafter referred to as the “Registration Statement”) to effect the registration of the Notes under the
Securities Act, and to the use of our name under the heading “Legal Matters” in the prospectus constituting a part of such
Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act or the Commission promulgated thereunder.
Very
truly yours,
/s/ Allen Overy Shearman Sterling US LLP
Exhibit 5.2
 |
BRIGARD & URRUTIA ABOGADOS S.A.S.
NIT. 800.134.536-3 |
October 21, 2024
Ecopetrol S.A.
Carrera 13 No. 36-24
Bogotá, D.C., Colombia
As Representatives of the Issuer
Ladies and Gentlemen,
We have acted as special Colombian
counsel to Ecopetrol S.A., a mixed economy company (sociedad de economía mixta) organized as a stock corporation (sociedad
anónima) under the laws of the Republic of Colombia (“Colombia”) (the “Issuer”), in connection
with the Issuer’s offering U.S.$1,750,000,000 aggregate principal amount of the Issuer’s 7.750% Notes due 2032 (the “Securities”)
pursuant to the Underwriting Agreement dated as of October 16, 2024 (the “Underwriting Agreement”) between the Underwriters
and yourselves. The Securities will be issued pursuant to the Indenture (as defined herein). All capitalized terms not defined herein
have such definitions as are specified in the Underwriting Agreement and the Indenture (together, the “Agreements”).
We have considered the laws
of Colombia, including its Constitution and the relevant decrees, treaties, rules, regulations and codes, as of the date hereof, and have
examined such documents and instruments as we have deemed necessary to give this opinion, including the following:
| a. | The Underwriting Agreement; |
| b. | The indenture dated as of July 23, 2009 (the “Indenture”), between the Issuer and the
Bank of New York Mellon (the "Trustee"). The Indenture was amended by Amendment No. 1 to the Indenture, dated as of June
26, 2015, between the Issuer and the Trustee (“Amendment No. 1”); |
| c. | The form of the Securities to be executed on behalf of the Issuer; |
| d. | The officer’s certificate dated October 21, 2024 delivered by the Issuer to the Trustee pursuant
to Section 301 of the Indenture; |
| e. | A copy of the certificate of incorporation and legal representation of the Issuer as of October 17, 2024,
issued by the Chamber of Commerce of Bogotá; |
| f. | A copy of the Issuer’s bylaws in effect as of the date provided to us by the Issuer; and |
| g. | Copies of all relevant provisions of Colombian laws, decrees, directives and other governmental acts pertaining
to the authorization of the issuance and sale of the Securities, including: |
1.
The Issuer’s board of directors’ secretary’s certificate dated September 27, 2024 concerning meetings dated December
15, 2023 and May 31, 2024 authorizing the issuance and offering of the Securities;
| |
BRIGARD & URRUTIA ABOGADOS S.A.S.
NIT. 800.134.536-3 |
2.
The authorization granted by the MHCP pursuant to Resolution 2990 dated October 8, 2024 relating to the issuance and sale of the
Securities and the execution and performance of the documents required to consummate the transaction;
3.
The registration of the public external indebtedness before the Colombian Central Bank (Banco de la República) by
filing the relevant “International Indebtedness granted to Residents Form (Informe de Crédito Externo Otorgado a Residentes)
provided by the intermediary of the foreign exchange market used in such registration, resulting from the issuance of the Securities
under the Indenture and the Securities; and
4.
Evidence of the publication of the Underwriting Agreement in the Sistema Electrónico para la Contratación Pública
– SECOP.
In providing this opinion,
we have made the following assumptions: (a) the authenticity and genuineness of all signatures; (b) that all documents submitted to us
as copy or specimen documents conform to their originals; (c) the authenticity and completeness of the original documents from which such
copies were made (d) that all documents submitted to us have not been amended or affected by any subsequent action not disclosed or known
to us; (e) that each of the parties to the Underwriting Agreement, the Indenture and the Securities (collectively, the "Transaction
Documents"), other than the Issuer, has the corporate power and authority to enter into and perform each of the Transaction Documents,
and that the Transaction Documents have been duly authorized, executed, and delivered by each of such parties other than the Issuer.
We have relied, as to factual
matters, on representations, statements and warranties contained in the Underwriting Agreement and in the documents we have examined.
Also, we have examined such corporate records, certificates and other documents, and such questions of law, as we considered necessary
or appropriate for the purposes of this opinion. The opinions herein are limited in all respects to the laws of Colombia as they stand
at the date hereof and as they are currently interpreted. We do not express any opinion on the laws of any jurisdiction other than Colombia.
Based on the foregoing and
upon such investigation, as we have deemed necessary, we are of the opinion that:
1. The Issuer
is a mixed economy company (sociedad de economía mixta) duly organized, validly existing and in good standing under the
laws of Colombia and has the necessary corporate power and capacity to own its property and assets and to carry on its business under
the laws of Colombia.
2. The execution,
delivery and performance by the Issuer of its obligations under the Agreements and the Securities have been duly authorized by all necessary
action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action.
3. The
Securities have been duly authorized, executed, issued and delivered by the Issuer in accordance with the Indenture and, assuming due
authentication and delivery by the Trustee (and assuming that the Securities constitute valid and legally binding obligations under the
laws of the State of New York, and are issued and delivered against payment of the purchase price therefor), the Securities will constitute
valid and legally binding obligations of the Issuer, enforceable in accordance with their respective terms, except as the enforcement
thereof may be limited by exequatur requirements for the recognition of foreign judgments in Colombia, specific regulations applicable
to state owned companies, Colombian public policy laws, bankruptcy, insolvency, moratorium (including, without limitation, all laws relating
to fraudulent transfers) or other similar laws relating to or affecting enforcement of creditor's rights generally, or by general principles
of equity, and will be entitled to the benefits of the Indenture.
| |
BRIGARD & URRUTIA ABOGADOS S.A.S.
NIT. 800.134.536-3 |
Our opinion is subject to the
assumptions, qualifications, exceptions and limitations indicated elsewhere herein. It is also limited to the matters expressly set forth
herein, and no opinion is implied or may be inferred beyond the matters expressly so stated.
This opinion letter speaks
only as of the date hereof and is limited to the matters stated herein and does not extend to, and is not to be read as extending by implication
to, any other matter in connection with the transaction to which it is related. We expressly disclaim any responsibility to advise you
of any development or circumstance of any kind, including any change of law or fact, which may occur after the date of this opinion letter
than might affect the opinions expressed herein. We are qualified to practice law in Colombia, and we express no opinion herein as to
any laws of any jurisdiction other than the laws of Colombia. We are furnishing this letter to you solely for your benefit in connection
with the offering of the Securities. This opinion is solely for your benefit and may not be relied upon in any manner or any purpose by
any other person.
We hereby consent to the filing
of this opinion as an exhibit to the Current Report on Form 6-K dated the date hereof filed by the Issuer and incorporated by reference
into the Registration Statement on Form F-3 dated April 19, 2024 (File No. 333-278823) filed by the Issuer to effect the registration
of the Securities under the Securities Act of 1933, as amended (the “Securities Act”) and to the use of our name under
the heading “Legal Matters” in the prospectus constituting a part of such Registration Statement. In giving this consent,
we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules
and regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
BRIGARD & URRUTIA
ABOGADOS S.A.S.
Exhibit 99.1
FACE OF NOTE
UNLESS THIS REGISTERED NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC OR SUCH OTHER REPRESENTATIVE OF DTC OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.
[FACE OF NOTE]
Ecopetrol S.A.
7.750% Notes due 2032
CUSIP 279158AW9
ISIN US279158AW93
US$[•]
No. [•]
Ecopetrol S.A., a mixed-economy
company (sociedad de economía mixta) organized under the laws of the Republic of Colombia (the “Company,”
which term includes any successor under the Indenture hereinafter referred to), for value received, promises to pay to Cede & Co.,
or its registered assigns, the principal sum of US$[•] on February 1, 2032.
Interest Payment Dates: February
1 and August 1 of each year, commencing on February 1, 2025.
Regular Record Dates: January
17 and July 17 of each year.
Reference is hereby made to
the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect
as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note
to be signed manually or by facsimile by its duly authorized officer.
Date: October 21, 2024
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Ecopetrol
S.A. |
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By: |
|
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Name: |
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Title: |
|
Trustee’s Certificate of Authentication
This is one of the 7.750% Notes due 2032 described in the within-mentioned
Indenture.
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The Bank of New York Mellon, as Trustee |
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|
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By: |
|
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|
Name: |
|
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Title: |
|
[REVERSE SIDE OF NOTE]
Ecopetrol S.A.
7.750% Notes due 2032 (the “Notes”)
1.
Principal and Interest.
The Company will pay the principal
of this Note on February 1, 2032.
The Company promises to pay
interest on the principal amount of this Note on each Interest Payment Date, as set forth below, at the rate per annum shown above.
Interest will be payable semiannually
on each Interest Payment Date, commencing February 1, 2025.
Interest on the Notes will accrue
from the most recent date to which interest has been paid or, if no interest has been paid, from October 21, 2024; provided that,
if there is no existing default in the payment of interest and this Note is authenticated between a Regular Record Date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such Interest Payment Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
In the case of amounts not paid
by the Company under this Note, interest will continue to accrue on such amounts, to the extent permitted by applicable law, at a default
rate equal to 1.0% in excess of the interest rate on this Note, from and including the date when such amounts were due and owing and through
and including the date of payment of such amounts by the Company.
2.
Method of Payment.
The Company will pay principal
as provided above and interest (except defaulted interest) on the principal amount of the Notes as provided above on each February 1 and
August 1 to the persons who are Holders (as reflected in the Note Register at the close of business on January 17 and July 17 immediately
preceding the Interest Payment Date), in each case, even if the Note is cancelled on registration of transfer or registration of exchange
after such record date; provided that, with respect to the payment of principal, the Company will not make payment to the Holder
unless this Note is surrendered to a Paying Agent.
The Company will pay principal,
premium, if any, and, as provided above, interest (and Additional Amounts, if any) in money of the United States that at the time of payment
is legal tender for payment of public and private debts. However, the Company may pay principal, premium, if any, and interest by its
check payable in such money. It may mail an interest check to a Holder’s registered address (as reflected in the Note Register).
If a payment date is a date other than a Business Day at a place of payment, payment may be made at that place on the next succeeding
day that is a Business Day and no interest shall accrue for the intervening period.
3.
Paying Agent and Security Registrar.
Initially, the Trustee will
act as Authenticating Agent, Paying Agent in New York and Security Registrar. The Company may appoint or change any Authenticating Agent,
Paying Agent or Security Registrar without notice. The Company, any Subsidiary or any Affiliate of any of them may act as Paying Agent,
Security Registrar or co-Security Registrar.
4.
Indenture; Limitations.
The Company issued the Notes
under an Indenture dated as of July 23, 2009, as amended by Amendment No. 1 to the Indenture, dated June 26, 2015 (the “Indenture”),
between the Company and The Bank of New York Mellon, as trustee (the “Trustee”) and an Officer’s Certificate
dated October 21, 2024 (the “Officer’s Certificate”). Capitalized terms herein are used as defined in the Indenture
or the Officer’s Certificate, as applicable, unless otherwise indicated. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act. The Notes are subject to all such terms, and Holders are
referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable law, in
the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Notes shall prevail.
The Notes are general unsecured
obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued.
5.
Optional Redemption.
Prior to December
1, 2031 (2 months prior to the maturity date of the Notes, the “Par Call Date”), the Company will have the right at
its option to redeem any of the Notes, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage
of principal amount and rounded to three decimal places) equal to the greater of:
| (1) | (a) the sum of the present values of the remaining scheduled payments of principal
and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points less (b) interest accrued to the date of
redemption, and |
| (2) | 100% of the principal amount of the Notes to be redeemed, |
plus, in either case, accrued and
unpaid interest thereon to the redemption date.
On or after the
Par Call Date, the Company may redeem, at its option, the Notes, in whole or in part, at any time and from time to time, at a redemption
price equal to 100% of the principal amount of the Notes, as applicable, being redeemed plus accrued and unpaid interest thereon to the
applicable redemption date.
“Treasury
Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate
shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are
posted daily by the Board of Governors (or after such time as yields on U.S. government securities are posted daily by the Board of Governors
of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent
day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal
Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”)
under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption
or heading). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity
on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if
there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding
to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15
immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual
number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity
on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining
Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity
date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third
business day preceding the redemption date H. 15 or any successor designation or publication is no longer published, the Company shall
calculate the Treasury Rate based on the rate annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City
time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity
that is closest to, the Par Call Date. If there is no United States Treasury security maturing on the Par Call Date but there are two
or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding
the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security
with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call
Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among
these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the
average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury
Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security
shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City
time, of such United States Treasury security, and rounded to three decimal places.
The Company’s
actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption
will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 10
days but not more than 60 days before the redemption date to each holder of the Notes, to be redeemed.
Notice of any optional
redemption may be, at the Company’s discretion, subject to one or more conditions precedent, including, but not limited to, the
completion of an equity offering or other corporate or financing transactions. In addition, if such optional redemption is subject to
satisfaction of one or more conditions precedent, such notice shall describe each such condition, and if applicable, shall state that,
in the Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied,
or such optional redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have
been satisfied by the redemption date, or by the redemption date as so delayed.
For so long as the
Notes are held by DTC (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures
of the depositary.
Unless the Company
defaults in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Notes or portions thereof
called for redemption.
6.
Withholding Tax Redemption.
The Notes may be redeemed at
the Company’s election, in whole but not in part on any date, by the giving of notice as provided under Section 106 of the
Indenture, at a price equal to 100% of the outstanding principal amount thereof, together with any Additional Amounts and accrued and
unpaid interest to the Redemption Date, if, as a result of any change in, or amendment to, laws or treaties (or any regulation or rulings
promulgated thereunder) of Colombia or any political subdivision or taxing authority thereof or therein or any change in the official
application, administration or interpretation of such laws, treaties, regulations or rulings in such jurisdictions, the Company is or
will become obligated to pay any Additional Amounts on the Notes, if such change or amendment is announced and becomes effective on or
after the issuance of the Notes and such obligation cannot be avoided by taking commercially reasonable measures available to the Company;
provided, however, that no such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Company
would be obligated to pay such Additional Amounts.
Notice of any redemption will
be mailed at least 10 days but not more than 60 days before the Redemption Date to each Holder of the Notes to be redeemed. Prior to the
giving of notice of redemption of such Notes pursuant to Section 106 of the Indenture, the Company will deliver to the Trustee an
Officer’s Certificate and a written opinion of recognized Colombian counsel independent of the Company and its Affiliates to the
effect that all governmental approvals necessary for it to effect such redemption have been or at the time of redemption will be obtained
and in full force and effect, and that the Company has or will become obligated to pay such Additional Amounts as a result of such change,
amendment, application, administration or interpretation. On the Redemption Date, interest will cease to accrue on the Notes that have
been redeemed.
7.
Partial Redemption.
If less than all of the Notes
are to be redeemed, the particular Notes to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee
from the Outstanding Notes not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of portions of the principal amount of the Notes; provided that no Note of U.S.$1,000
in principal amount or less shall be redeemed in part.
The Trustee shall promptly notify
the Company and the Security Registrar (if other than itself) in writing of the Notes selected for redemption and, in the case of any
Notes selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of the Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Notes shall relate, in the case of any Notes redeemed
or to be redeemed only in part, to the portion of the principal of such Notes which has been or is to be redeemed.
8.
Notice of Redemption.
Notice of any redemption pursuant
to Section 5 hereof will be given in the manner provided in Section 106 of the Indenture, not less than 10 nor more than 60
days prior to the Redemption Date to the Holders of Notes to be redeemed. Failure to give notice by mailing in the manner herein provided
to the Holder of any Note designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect
the validity of the proceedings for the redemption of any other Notes or portion thereof.
Any notice that is mailed to
the Holder of any Notes in the manner herein provided shall be conclusively presumed to have been duly given, whether or not such Holder
receives the notice.
All notices of redemption shall
state:
1.
the Redemption Date,
2.
the Redemption Price,
3.
if less than all Outstanding Notes are to be redeemed, the identification (and, in the case of partial redemption, the principal
amount) of the particular Note or Notes to be redeemed,
4.
in case any Note is to be redeemed in part only, the notice which relates to such Note shall state that on and after the
Redemption Date, upon surrender of such Note, the Holder of such Note will receive, without charge, a new Note or Notes of authorized
denominations for the principal amount thereof remaining unredeemed,
5.
that, on the Redemption Date, the Redemption Price shall become due and payable upon each such Note or portion thereof
to be redeemed, and, if applicable, that interest thereon shall cease to accrue on and after said date,
6.
the place or places where such Notes are to be surrendered for payment of the Redemption Price and any accrued interest
and Additional Amounts pertaining thereto, and
7.
the CUSIP number or the Euroclear or the Clearstream Luxembourg reference numbers of such Notes, if any (or any other numbers
used by a Depository to identify such Notes).
A notice of redemption published
as contemplated by Section 106 of the Indenture need not identify particular Notes to be redeemed.
Notice of redemption of Notes
to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the
name and at the expense of the Company.
9.
Repurchase of Securities upon a Change of Control Repurchase Event.
The Company must commence, within
30 days of the occurrence of a Change of Control Repurchase Event, and consummate an Offer to Purchase for all Notes then Outstanding,
at a purchase price equal to 101% of the principal amount of the Notes on the date of repurchase, plus accrued interest (if any) to the
date of purchase. The Company is not required to make an Offer to Purchase following a Change of Control Repurchase Event if a third party
makes an Offer to Purchase that would be in compliance with the provisions described in this section if it were made by the Company and
such third party purchases (for the consideration referred to in the immediately preceding sentence) the Notes validly tendered and not
withdrawn prior to the mailing of the notice to Holders commencing such Offer to Purchase, but in any event within 30 days following any
Change of Control Repurchase Event, the Company, covenants to (i) repay in full all Indebtedness of the Company that would prohibit
the repurchase of the Notes pursuant to such Offer to Purchase or (ii) obtain any requisite consents under instruments governing
any such Indebtedness of the Company to permit the repurchase of the Notes. The Company shall first comply with the covenant in the preceding
sentence before it shall be required to repurchase Notes pursuant to this Section 9.
The Company shall comply, to
the extent applicable, with the requirements of Rule 14e-1 of the Exchange Act and other applicable securities laws or regulations
in connection with making an Offer to Purchase upon the occurrence of a Change of Control Repurchase Event. To the extent that the provisions
of any applicable securities laws or regulations conflict with provisions of this Section 9, the Company shall comply with the applicable
securities laws and regulations and will not be deemed to have breached the Company’s obligations under this Section 9 by virtue
of the Company’s compliance with such securities laws or regulations.
10.
Denominations; Transfer; Exchange.
The Notes are in registered
form without coupons in minimum denominations of US$1,000 of principal amount and multiples of US$1,000 in excess thereof. A Holder may
register the transfer or exchange of Notes in accordance with the Indenture. The Security Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.
The Security Registrar need not register the transfer or exchange of any Notes selected for redemption. Also, it need not register the
transfer or exchange of any Notes for a period of 15 days before a selection of Notes to be redeemed is made.
11.
Persons Deemed Owners.
A Holder shall be treated as
the owner of a Note for all purposes.
12.
Unclaimed Money.
If money for the payment of
principal, premium, if any, or interest remains unclaimed for two years, the Trustee and the Paying Agent will pay the money back to the
Company at its request. After that, Holders entitled to the money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease.
13.
Discharge Prior to Redemption or Maturity.
The Company’s obligations
pursuant to the Indenture will be discharged, except for obligations pursuant to certain sections thereof, subject to the terms of the
Indenture, upon the payment of all the Notes or upon the irrevocable deposit with the Trustee of U.S. Dollars or Government Securities
sufficient to pay when due principal of and interest on the Notes to maturity or redemption, as the case may be.
14.
Amendment; Supplement; Waiver.
Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of
the Notes then Outstanding, and any existing default or compliance with any provision may be waived with the consent of the Holders of
at least a majority in principal amount of the Notes then Outstanding. Without notice to or the consent of any Holder, the parties thereto
may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency and make any change
that does not materially and adversely affect the rights of any Holder.
15.
Restrictive Covenants.
The Indenture imposes
certain limitations on the ability of the Company and its Material Subsidiaries, among other things, to create, incur or assume
Liens (except for Permitted Liens), or, with respect to the Company, to consolidate with or merge into, or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its assets and the properties and assets of its Subsidiaries
(taken as a whole) as an entirety to, any entity or entities except under certain circumstances. Within 120 days after the end of
each fiscal year, the Company must report to the Trustee on compliance with such limitations.
16.
Successor Persons.
When a successor person or other
entity assumes all the obligations of its predecessor under the Notes and the Indenture, the predecessor person will be released from
those obligations.
17.
Defaults and Remedies.
“Event of Default”
means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative
or governmental body):
(1)
default in the payment of any interest on any Note, or any Additional Amounts payable with respect thereto, when the interest
becomes or the Additional Amounts become due and payable, and continuance of the default for a period of 30 days;
(2)
default in the payment of the principal of or any premium on any Note, or any Additional Amounts payable with respect thereto,
when the principal or premium becomes or the Additional Amounts become due and payable at their maturity, upon redemption or otherwise,
and continuance of the default for a period of 7 days;
(3)
default in the performance, or breach, of any covenant or warranty of the Company in the Indenture (other than a covenant
or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly
been included in the Indenture solely for the benefit of a series of notes other than this series of Notes) or the Notes and continuance
of the default or breach for a period of 60 days (inclusive of any cure period contained in any such covenant or other term for compliance
thereunder) after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding Notes, a written notice specifying the default or breach and requiring
it to be remedied and stating that the notice is a notice of default under Section 603 of the Indenture;
(4)
any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there
may be secured or evidenced, any External Indebtedness of the Company, other than the Notes, or any Material Subsidiary of the Company,
whether the External Indebtedness now exists or shall hereafter be created, shall occur and shall result in such External Indebtedness
in aggregate principal amount (or, if applicable, with an issue price and accreted original issue discount) in excess of US$100.0 million
(or its equivalent in another currency) becoming or being declared due and payable prior to the date on which it would otherwise become
due and payable;
(5) the
entry by a court having competent jurisdiction of one or more final and non-appealable judgments or final decrees against the
Company or a Material Subsidiary involving in the aggregate a liability (not paid or fully covered by insurance) of 1% of
Consolidated Net Tangible Assets (or its equivalent in another currency) or more, and all such judgments or decrees have not been
vacated, discharged or stayed within 180 days after the date set for payment;
(6)
the Company admits that it is generally unable to pay its debts as they become due or passes a resolution to dissolve;
(7)
the entry by a court having competent jurisdiction of:
(a)
a decree or order for relief in respect of the Company in an involuntary proceeding under Bankruptcy Law, which decree or
order shall remain unstayed and in effect for a period of 180 consecutive days;
(b)
a decree or order in an involuntary proceeding under Bankruptcy Law adjudging the Company to be insolvent, or approving
a petition seeking a similar relief under Bankruptcy Law in respect of the Company, which decree or order shall remain unstayed and in
effect for a period of 180 consecutive days; or
(c)
a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official
of the Company or of any substantial part of the property of the Company or ordering the winding up or liquidation of the affairs of the
Company; and
(8)
the commencement by the Company of a voluntary proceeding under any applicable bankruptcy, insolvency or other similar law
or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company to the entry of a decree or order for relief
in an involuntary proceeding under any applicable bankruptcy, insolvency or other similar law or to the commencement of any insolvency
proceedings against it, or the filing by the Company of a petition or answer or consent seeking relief under any applicable bankruptcy,
insolvency or other similar law, or the consent by the Company to the filing of the petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company or any substantial part of the property of
the Company or the making by the Company of an assignment for the benefit of creditors, or the taking of corporate action by the Company
in furtherance of any such action.
If an Event of Default with
respect to the Notes at the time Outstanding (other than an Event of Default specified in clause (7) or (8) of this Section 17)
occurs and is continuing, then the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Notes may declare
the principal of all the Notes to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by
the Holders), and upon any declaration the principal or such lesser amount shall become immediately due and payable. If an Event of Default
specified in clause (7) or (8) of this Section 17 occurs, all unpaid principal of and accrued interest on the Outstanding Notes
shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of any Note.
At any time after a
declaration of acceleration or automatic acceleration with respect to the Notes has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee, the Holders of not less than a majority in principal amount of the
outstanding Notes, by written notice to the Company and the Trustee, may rescind and annul the declaration and its consequences
if:
1.
the Company has paid or deposited with the Trustee a sum of money sufficient to pay (1) all overdue installments of interest on
the notes and any Additional Amounts payable with respect thereto and (2) all fees and expenses incurred by the Trustee in accordance
with the Indenture in connection with the Event of Default that gave rise to the acceleration by the Holders and the principal and any
premium on the notes which have become due otherwise than by the declaration of acceleration and interest thereon; and
2.
all Events of Default with respect to the Notes, other than the nonpayment of the principal of, any premium and interest on, and
any Additional Amounts with respect to the Notes which shall have become due solely by the acceleration, shall have been cured or waived.
No rescission granted shall
affect any subsequent default or Event of Default or impair any right consequent thereon.
18.
Additional Amounts.
All payments to
be made in respect of the Notes will be made free and clear of, and without deduction or withholding for or on account of, any taxes imposed
or levied by or on behalf of Colombia or any political subdivision or authority of or in such jurisdiction having the power to tax (“Taxes”,
and such jurisdictions, “Taxing Jurisdiction”), except to the extent such Taxes are imposed by applicable law. In the
event that any Taxes are required by applicable law to be deducted or withheld from any payment required to be made in respect of the
Notes or otherwise under the Indenture, then the amount of such payment shall be increased by an amount as may be necessary such that
such payment is made, after withholding or deduction for or on account of such Taxes, in an amount equal to the amount that would have
been received by the applicable recipient(s) in respect of such payment had no such Taxes (including any Taxes payable in respect of such
Additional Amounts) been required to be so deducted or withheld (any such amounts, “Additional Amounts”).
Furthermore, the amount
of any Taxes required to be withheld or deducted from any payment made in respect of the Notes or otherwise under the indenture shall
be withheld or deducted from such payment (as increased by any Additional Amounts) and paid to the Taxing Jurisdiction imposing such Taxes
in accordance with applicable law.
Notwithstanding
the preceding sentences, no such Additional Amounts will be payable in respect of:
(i).
any Tax assessed or imposed by any Taxing Jurisdiction to the extent that such Tax would not have been assessed or imposed but
for the applicable recipient or beneficial owner of such payment having a present or former connection with the Taxing Jurisdiction (including,
without limitation, such holder being or having been a citizen or resident thereof or having been engaged in a trade or business or present
therein or having, or having had, a permanent establishment therein), other than solely by reason of the applicable recipient’s
participation in the transactions effected by the Indenture and the receipt of payments thereunder (including under the Notes);
(ii).
any estate, inheritance, gift, personal property, sales, use, excise, transfer or other similar Tax imposed with respect to such
payment;
(iii).
any such Taxes that would not have been imposed but for the failure of the applicable recipient or beneficial owner of such payment
to comply with any certification, identification, information, documentation or other reporting requirement to the extent (a) such compliance
is required by applicable law or an applicable treaty as a precondition to exemption from, or reduction in the rate of deduction or withholding
of, such Taxes and (b) at least 30 days before the first payment date with respect to which the obligor with respect to a payment shall
apply this clause (iii), such obligor shall have notified such recipient in writing that such recipient will be required to comply with
such requirement;
(iv).
any Tax imposed as a result of any note being presented for payment (where presentation is required) more than 15 days after the
relevant payment is first made available for payment to the applicable recipient (except to the extent that such recipient would have
been entitled to Additional Amounts had the note been presented during such 15-day period);
(v).
any Tax payable other than by withholding or deduction from payments of principal or of interest on the note;
(vi).
any Tax imposed on or in respect of a payment to or on behalf of a holder or beneficial owner who would have been able to avoid
such Tax in a commercially reasonable manner by presenting the relevant note to any other paying agent;
(vii).
any Tax imposed on or in respect of any note pursuant to sections 1471 to 1474 of the U.S. Internal Revenue Code of 1986, as amended
(the “Code”), any successor law or regulation implementing or complying with, or introduced in order to conform to,
such sections or any intergovernmental agreement or any agreement entered into pursuant to section 1471(b)(1) of the Code; or
(viii).
any combination of the circumstances described in clauses (i) through (vii);
nor will any Additional
Amounts be paid with respect to any payment to a recipient who is a fiduciary, partnership, limited liability company or any Person other
than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary or a member
of such partnership, limited liability company or a beneficial owner would not have been entitled to the Additional Amounts had such beneficiary,
settlor, member or beneficial owner been in the place of such recipient.
The Company shall
provide the trustee upon its request with documentation reasonably satisfactory to it evidencing the payment of Taxes in respect of which
the Company has paid any Additional Amounts. Copies of such documentation will be made available to the applicable recipients upon written
request therefor to the trustee.
The obligation to
pay Additional Amounts will survive the repayment of the Notes and the sale or transfer of the Notes (or beneficial interests therein)
by any investor.
In addition, the Company shall
pay any and all other Taxes (“Other Taxes”) imposed by the relevant taxing authority imposing such Other Taxes in accordance
with applicable law, excluding any such Other Taxes imposed by any jurisdiction outside of Colombia. As used herein, Other Taxes shall
mean any and all stamp, documentary or similar taxes, or any other excise or similar levies that arise on account of any payment to be
made under any Note or from the execution, delivery, registration, recording or enforcement of the Notes and the Indenture (other than
any Taxes paid in accordance with the first paragraph of “—Additional Amounts”).
19.
Governing Law; Submission to Jurisdiction; Appointment of CSC; Sovereign Immunity Waiver.
The Indenture and this Note
shall be governed by and construed in accordance with the laws of the State of New York except that the laws of Colombia will govern all
matters relating to authorization and execution of the Indenture and this Note by the Company.
Each of the Trustee and the
Company irrevocably consents and agrees, to the fullest extent permitted by applicable law, that any legal action, suit or proceeding
against it with respect to its obligations, liabilities or any other matter arising out of or based on the Indenture and this Note may
be brought in any United States federal or state court in the State of New York, County of New York.
The Company designates, appoints,
and empowers Corporation Service Company with offices currently at 1133 Avenue of the Americas, Suite 3100, New York, New York 10036,
as its designee, appointee and agent to receive and accept for and on its behalf, and its properties, assets and revenues, service of
any and all legal process, summons, notices and documents that may be served in any action, suit or proceeding brought against any of
the Company in any such United States federal or state court with respect to its obligations, liabilities or any other matter arising
out of or in connection with the Indenture and this Note and that may be made on such designee, appointee and agent in accordance with
legal procedures prescribed for such courts. If for any reason such designee, appointee and agent hereunder shall cease to be available
to act as such, the Company agrees to designate a new designee, appointee and agent in The City of New York on the terms and for the purposes
under Section 113 of the Indenture reasonably satisfactory to the Trustee. The Company further hereby irrevocably consents and agrees
to the service of any and all legal process, summons, notices and documents in any such action, suit or proceeding against the Company
by serving a copy thereof upon the relevant agent for service of process referred to in this Section 19 (whether or not the appointment
of such agent shall for any reason prove to be ineffective or such agent shall accept or acknowledge such service). The Company agrees
that the failure of any such designee, appointee and agent to give any notice of such service to them shall not impair or affect in any
way the validity of such service or any judgment rendered in any action or proceeding based thereon. Each of the parties irrevocably and
unconditionally waives, to the fullest extent permitted by law, any objection that they may now or hereafter have to the laying of venue
of any of the aforesaid actions, suits or proceedings arising out of or in connection with the Indenture and this Note brought in the
federal courts located in The City of New York or the courts of the State of New York located in The County of New York and hereby further
irrevocably and unconditionally waives and agrees, to the fullest extent permitted by law, not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
The Company irrevocably waives,
to the fullest extent permitted by applicable law, any immunity (including sovereign immunity) from suit, action, proceeding or jurisdiction
to which it might otherwise be entitled in any such suit, action or proceeding in any U.S. federal or New York State court in the Borough
of Manhattan, The City of New York, or in any competent court in Colombia; except as provided under (i) Articles 192, 193 and 195 of Law
1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo), as amended by Article 87 of Law
2080 of 2021; and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso), pursuant to which
the revenues, assets and property of the Company located in Colombia are not subject to execution, set-off or attachment; provided, however,
that under the laws of Colombia, any suit, action, proceeding or jurisdiction for the collection of amounts ordered by or arising from
collectable documents will be subject to the rules set forth under Articles 298 and 299 of Law 1437 of 2011 (Código de Procedimiento
Administrativo y de lo Contencioso Administrativo), as amended by Articles 80, 81 and 87 of Law 2080 of 2021. Under the laws of Colombia,
the regulations that govern statutes of limitations and other time limits for any suit, action, proceeding or jurisdiction may not be
waived by the Company. In addition, to the extent that the Company or any of its revenues, assets or properties will be entitled, in any
jurisdiction, to any immunity from setoff, banker’s lien, attachment or any similar right or remedy, and to the extent that there
will be attributed, in any jurisdiction, such an immunity, the Company hereby irrevocably agrees not to claim and irrevocably waives such
immunity to the fullest extent permitted by the laws of such jurisdiction with respect to any claim, suit, action, proceeding, right or
remedy arising out of or in connection with the Indenture and this Note. The Company reserves the right to plead sovereign immunity under
the United States Foreign Sovereign Immunities Act of 1976, as amended, with respect to any action brought against it under the United
States federal securities laws or any state securities laws.
20.
Trustee Dealings with Company.
The Trustee under the Indenture,
in its individual or any other capacity, may make loans to, accept deposits from and perform services for the Company or its Affiliates
and may otherwise deal with the Company or its Affiliates as if it were not the Trustee, provided that if the Trustee acquires any conflicting
interest, it must eliminate the conflict upon the occurrence of an Event of Default or else resign.
21.
No Recourse Against Others.
No recourse for the payment
of the principal of, premium, if any, or interest on any of the Notes or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or in the Notes or because of the
creation of any Indebtedness represented thereby, shall be had against any shareholder, officer, director, employee or controlling person
of the Company or of any successor thereof.
22.
Authentication.
This Note shall not be valid
until the Trustee or Authenticating Agent signs the certificate of authentication on the other side of this Note.
23.
Abbreviations.
Customary abbreviations may
be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN
(= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to
any Holder upon written request and without charge a copy of the Indenture. Requests may be made to Ecopetrol S.A., Carrera 13 No. 36-24
Bogota, Colombia, Attention: Investor Relations Officer.
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder
hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
_________________________________________________________________________
Please print or typewrite name and address including zip code of assignee
_________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and appointing
___________________________________________ attorney to transfer said
Note on the books of the Company with full power of substitution in the premises.
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