EC Ecopetrol SA

 

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 June, 2015

Commission File Number 001-34175

 

ECOPETROL S.A.

(Exact name of registrant as specified in its charter)

N.A.

(Translation of registrant’s name into English)

COLOMBIA

(Jurisdiction of incorporation or organization)

Carrera 13 No. 36 – 24

BOGOTA D.C. – 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 ☒ 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 ☒

 

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 ☒

 

Indicate by check mark whether the registrant by furnishing the information contained in this form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.

 

Yes ☐ No ☒

 

If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82- N/A

 

 

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 July 26, 2013 (File No. 333-190198).

  

Exhibits

 

Exhibit 5.1 – Opinion of Sullivan & Cromwell LLP, New York counsel to the Company, regarding the validity of the securities.

 

Exhibit 5.2 – Opinion of Brigard & Urrutia Abogados, Colombian counsel to the Company, regarding validity of the securities.

 

Exhibit 23.1 – Consent of Sullivan & Cromwell LLP (included in Exhibit 5.1 above).

 

Exhibit 23.2 – Consent of Brigard & Urrutia Abogados (included in Exhibit 5.2 above).

 

Exhibit 99.1 – Form of 5.375% Notes Due 2026

 

 

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.

 

	Ecopetrol S.A.
	By:	/s/ Magda Manosalva
	Name:	Magda Manosalva
	Title:	Chief Financial Officer

 

Date: June 26, 2015

 

 

Exhibit 5.1 

[Letterhead of Sullivan & Cromwell LLP]

 

June 26, 2015

 

 

 

Ecopetrol S.A.,

Carrera 13, #36-24, Piso 7, 

Bogotá, Colombia.

 

Ladies and Gentlemen:

 

We are acting as New York counsel to Ecopetrol S.A., a Colombian mixed economy company (the “Company”), in connection with the registration under the Securities Act of 1933 (the “Act”) and sale of $1,500,000,000 principal amount the Company’s 5.375% Notes due 2026 (the “Securities”). The securities are being sold under the Company’s Registration Statement on Form F-3ASR (No. 333-190198), filed with the U.S. Securities and Exchange Commission on July 26, 2013, pursuant to the Prospectus dated June 23, 2015, as supplemented by the Prospectus Supplement dated June 23, 2015. As such United States counsel, we have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion.

 

Upon the basis of such examination, it is our opinion that the Securities constitute valid and legally binding obligations of the Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.

 

In rendering the foregoing opinion we are not passing upon, and assume no responsibility for, any disclosure in the Registration Statement, the Prospectus or the Prospectus Supplement regarding the Company, the Securities or the offering and sale of the Securities. In addition, in rendering the foregoing opinion, we are expressing no opinion as to United States Federal or state laws relating to fraudulent transfers.

 

The foregoing opinion is limited to the Federal laws of the United States and the laws of the State of New York, and we are expressing no opinion as to the effect of the laws of any other jurisdiction.

 

 

Ecopetrol S.A.
	-2-

 

 

We have relied as to certain matters on information obtained from public officials, officers of the Company and other sources believed by us to be responsible, and we have assumed, without independent verification, that the Indenture has been duly authorized, executed and delivered by the Trustee and by the Company insofar as Colombian law is concerned, that the Securities constitute valid and legally binding obligations of the Company under the laws of Colombia, that the Trustee’s certificates of authentication of the Securities have been manually signed by one of the Trustee’s authorized officers, that the Notes have been delivered against payment as contemplated in the Registration Statement and that the signatures on all documents examined by us are genuine. With respect to all matters of Colombian law, we understand that you are relying upon the opinion, dated the date hereof, of Brigard & Urrutia S.A.S.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to us under the heading “Legal Matters” in the Prospectus and the Prospectus Supplement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.

 

 

	Very truly yours,
	/s/ Sullivan & Cromwell LLP

 

 

 

Exhibit 5.2

 

CALLE 70 A # 4 – 41 BOGOTÁ D.C., COLOMBIA TEL.: (571) 744 22 44 FAX: (571) 310 06 09 / 310 05 86 www.bu.com.co

 

June 26, 2015

 

 

Ecopetrol S.A.

Carrera 13 No. 36-24

Bogotá D.C., Colombia

 

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 of U.S. $1,500,000,000 in aggregate principal amount of the Issuer’s 5.375% Notes due 2026 (the “Securities"), pursuant to the Underwriting Agreement dated as of June 23, 2015 (the "Underwriting Agreement "), between the Underwriter and you. 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, between the Issuer and the Bank of New York Mellon (the "Trustee"), and a copy of Amendment No. 1 of the Indenture, dated June 26, 2015 (collectively, the “Indenture”);

 

(c)

The form of the Securities to be executed on behalf of the Issuer;

 

(d)

The officer’s certificate dated June 26, 2015 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 June 26, 2015, issued by the Chamber of Commerce of Bogota;

 

(f)

A copy of the Issuer’s Bylaws in effect as the provided to us by the Company; and

 

CALLE 70 A # 4 – 41 BOGOTÁ D.C., COLOMBIA TEL.: (571) 744 22 44 FAX: (571) 310 06 09 / 310 05 86 www.bu.com.co

 

(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)

Issuer’s board of directors’ minute No. 222, dated on May 22 of 2015, authorizing the issuance and offering the Securities;

 

(2)

The preliminary authorization from the Colombian Ministry of Finance and Public Treasury (“MHCP”) pursuant to which the Issuer was authorized to take all actions aimed at incurring certain foreign indebtedness, by means of Resolution 0928 dated April 10, 2015;

 

(3)

The definitive authorization granted by the MHCP pursuant to Resolution 2204 dated June 22, 2015, relating to the issuance and sale of the Securities and the execution and performance of the documents required to consummate the transaction;

 

(4)

The favorable opinion from the National Planning Department (Departamento Nacional de Planeación), including opinions No. 20134380924731 dated as of December 24, 2013 and No. 20144380119281 as of February 7, 2014 for the Issuer to incur indebtedness under the Securities;

 

(5)

The filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on Form No. 6 (Formulario 6), resulting from the issuance of the Securities under the Indenture and the Securities;

 

(6)

Order of publication of the Procurement Diary (Diario Oficial), related to the publication of the definitive authorization for the offering of the Securities issued by the MHCP;

 

(7)

Evidence of the publication of the Underwriting Agreement in the Sistema Electrónico para la Contratación Pública – SECOP; and

 

(8)

Filing of the documents related to the transaction with the Contraloría General de la República as a record of the indebtedness.

 

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 Notes (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.

 

 

CALLE 70 A # 4 – 41 BOGOTÁ D.C., COLOMBIA TEL.: (571) 744 22 44 FAX: (571) 310 06 09 / 310 05 86 www.bu.com.co

 

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 and validly existing under the laws of the Republic 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 Notes 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 judgements 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.

 

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 do not extend to, and are no to be read as extending by implication to, any other matter in connection with the transaction to which they are relate. 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.

 

 

CALLE 70 A # 4 – 41 BOGOTÁ D.C., COLOMBIA TEL.: (571) 744 22 44 FAX: (571) 310 06 09 / 310 05 86 www.bu.com.co

 

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 Company and incorporated by reference into the Registration Statement on Form F-3 dated July 26, 2013 (File No. 333-190198) filed by the Company 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 and in the prospectus supplement dated June 23, 2015. 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,
	/s/ Manuel Fernando Quinche
	Manuel Fernando Quinche
	Partner
	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.

 

5.375% Notes due 2026

 

CUSIP [●]

 

ISIN [●]

 

No. [●] US$[●]

 

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 June 26, 2026.

 

Interest Payment Dates: June 26 and December 26 of each year, commencing December 26, 2015.

 

Regular Record Dates: June 11 and December 11 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 officers.

 

Date: June [●], 2015
	Ecopetrol S.A.
	By:
		Name:   Camilo Marulanda López
		Title:    Acting Chief Executive Officer

 

 

Trustee’s Certificate of Authentication

 

This is one of the 5.375% Notes due 2026 described in the within-mentioned Indenture.

 

	The Bank of New York Mellon, as Trustee
	By:
		Name:
		Title:

 

 

[REVERSE SIDE OF NOTE]

 

Ecopetrol S.A.

 

5.375% Notes due 2026 (the “Notes”)

 

1.

Principal and Interest.

 

The Company will pay the principal of this Note on June 26, 2026.

 

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 December 26, 2015.

 

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 June 26, 2015; 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 June 26 and December 26 to the persons who are Holders (as reflected in the Note Register at the close of business on June 11 and December 11 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 June 26, 2015 (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 control.

 

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.

 

The Company will have the right at its option to redeem any of the Notes in whole or in part, at any time or from time to time prior to their maturity, on at least 30 days’ but not more than 60 days’ notice, at a redemption price equal to the greater of (1) 100% of the principal amount of such Notes and (2) the sum of the present values of each remaining scheduled payment of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 45 basis points, plus accrued and unpaid interest on the principal amount of the Notes to but excluding the date of redemption.

 

At any time on or after March 26, 2026 (three months prior to the maturity date of the Notes), the Company may redeem the Notes, in whole or in part, at any time and from time to time, on not less than 30 nor more than 60 days’ notice, at a redemption price equal to 100% of the principal amount of the Notes being redeemed, plus any interest accrued but not paid to, but excluding, the date of redemption.

 

“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.

 

“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such Notes.

 

 

“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.

 

“Comparable Treasury Price” means, with respect to any Redemption Date (1) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotation or (2) if the Company obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.

 

“Reference Treasury Dealer” means Credit Suisse Securities (USA) LLC, HSBC Securities (USA) Inc. or their affiliates which are primary United States government securities dealers and three other leading primary United States government securities dealers in New York City reasonably designated by the Company; provided, however, that if any of the foregoing shall cease to be a primary United States government securities dealer in New York City (a “Primary Treasury Dealer”), the Company will substitute therefore another Primary Treasury Dealer.

 

“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Company by such Reference Treasury Dealer at 3:30 pm New York time on the third business day preceding such Redemption Date.

 

On and after the Redemption Date, interest will cease to accrue on the Notes or any portion of the Notes called for redemption (unless the Company defaults in the payment of the redemption price and accrued interest). On or before the Redemption Date, the Company will deposit with the Trustee money sufficient to pay the redemption price of and (unless the Redemption Date shall be an interest payment date) accrued interest to the Redemption Date on the Notes to be redeemed on such date.

 

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 30 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 30 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 any interest on and Additional Amounts with respect to all the notes 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 of and any premium on the notes which have become due otherwise than by the declaration of acceleration and interest on the notes; 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.

 

18.

Additional Amounts.

 

Any payments by the Company under or with respect to the Notes may require the payment of Additional Amounts as may become payable under Section 1005 of the Indenture.

 

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) applicable to administrative or judicial proceedings initiated on or after July 2, 2012 and (ii) Articles 513 and 684 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be gradually superseded by Articles 593, 594 and 595 et al subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof and as determined by the Council of the Judiciary (Consejo Superior de la Judicatura), 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 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) applicable to administrative or judicial proceedings initiated on or after July 2, 2012. 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 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.

 

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.