FIFTH SUPPLEMENTAL INDENTURE

Exhibit 4.1

WELLS FARGO & COMPANY

AND

THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION

Trustee

FIFTH SUPPLEMENTAL INDENTURE

Dated as of August 19, 2008

to

INDENTURE

Dated as of August 1, 2005

Junior Subordinated Debt Securities

TABLE OF CONTENTS

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FIFTH SUPPLEMENTAL INDENTURE, dated as of August 19, 2008, between WELLS FARGO & COMPANY, a Delaware corporation (hereinafter called the “Company”) having its principal place of business at 420 Montgomery Street, San Francisco, California 94163, and THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION (as successor in interest to J.P. Morgan Trust Company, N.A.), not in its individual capacity but solely as trustee under the Indenture referred to herein and under this Fifth Supplemental Indenture (hereinafter called the “Trustee”), having its Corporate Trust Office at 2 North LaSalle, Suite 1020, Chicago, IL 60602.

RECITALS OF THE COMPANY

The Company and the Trustee have heretofore executed and delivered a certain Indenture, dated as of August 1, 2005 (the “Indenture”), providing for the issuance from time to time of Debt Securities;

Section 901 of the Indenture provides that a supplemental indenture may be entered into by the Company and the Trustee without the consent of any Holders to establish the form or terms of Debt Securities of any series as permitted by Sections 201 and 301 of the Indenture;

The Company and the Trustee have heretofore executed and delivered the First Supplemental Indenture dated as of December 5, 2006, the Second Supplemental Indenture dated as of May 25, 2007, the Third Supplemental Indenture dated as of March 12, 2008 and the Fourth Supplemental Indenture dated as of May 19, 2008 establishing the form and terms of certain Debt Securities;

Pursuant to Sections 201 and 301 of the Indenture, the Company desires to provide for the establishment of a new series of Debt Securities under the Indenture, the form and substance of such Debt Securities and the terms, provisions and conditions thereof to be set forth as provided in the Indenture and this Fifth Supplemental Indenture; and

The conditions set forth in the Indenture for the execution and delivery of this Fifth Supplemental Indenture have been satisfied and all things necessary have been done to make this Fifth Supplemental Indenture a valid agreement of the Company, in accordance with its terms, and a valid amendment of, and supplement to, the Indenture.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Debt Securities of the series established by this Fifth Supplemental Indenture by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of such Debt Securities, that the Indenture is supplemented and amended, to the extent and for the purposes expressed herein, as follows:

ARTICLE ONE

DEFINITIONS

Section 101. Definitions. For all purposes of this Fifth Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires, (i) references to any Article, Section or subdivision thereof are references to an Article, Section or other subdivision of this Fifth Supplemental Indenture and (ii) capitalized terms not otherwise defined herein shall have the meanings set forth in the Indenture and the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular:

“ Administrative Trustees ” has the meaning set forth in Section 201(a).

“ APM Commencement Date ” means, with respect to any Deferral Period, the earlier of (i) the first Interest Payment Date following the commencement of such Deferral Period on which the Company pays any current interest on the Junior Subordinated Debentures and (ii) the conclusion of 20 consecutive Interest Periods following the commencement of such Deferral Period.

“ Bankruptcy Event ” means any of the events set forth in Section 501(2) or (3) of the Indenture.

“ Business Day ” means any day, other than a Saturday, Sunday or other day on which banking institutions in New York, New York, Minneapolis, Minnesota or Wilmington, Delaware are authorized or required by law or executive order to remain closed.

“ Calculation Agent ” means Wells Fargo Bank, National Association, or any other firm appointed by the Company, acting as calculation agent for the Junior Subordinated Debentures.

“ Capital Securities ” has the meaning set forth in the Trust Agreement.

“ Capital Stock ” for any entity means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) shares issued by that entity.

“ Common Equity Issuance Cap ” has the meaning set forth in Section 201(j)(1).

“ Current Stock Market Price ” of the Common Stock on any date shall mean (i) the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions by the New York Stock Exchange or, if the Common Stock is not then listed on the New York Stock Exchange, as reported by the principal U.S. securities exchange on which the Common Stock is traded, (ii) if the Common Stock is not listed on any U.S. securities exchange on the relevant date, the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported by the National Quotation Bureau or similar organization, or (iii) if the Common Stock is not so quoted, the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.

“ Deferral Period ” means each period beginning on an Interest Payment Date with respect to which the Company elects pursuant to Section 201(g) to defer all or part of any interest payment and ending on the earlier of (i) the conclusion of 40 consecutive Interest Periods following such Interest Payment Date and (ii) the next Interest Payment Date on which the Company has paid the deferred amount, all deferred amounts with respect to any subsequent period and all other accrued interest on the Junior Subordinated Debentures.

“ Distribution Date ” has the meaning set forth in the Trust Agreement.

“ Eligible Proceeds ” means, with respect to any Interest Payment Date, the net proceeds (after underwriters’ or placement agents’ fees, commissions or discounts and other expenses relating to the issuance or sale) the Company has received during the 180-day period prior to such Interest Payment Date from the issuance or sale of Common Stock or Qualifying Warrants up to the Maximum Share Number or Qualifying Preferred Stock up to the Preferred Stock Issuance Cap to Persons that are not Subsidiaries.

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“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

“ Federal Reserve ” means the Board of Governors of the Federal Reserve System, together with the Federal Reserve Bank of San Francisco, California, or any successor federal bank regulatory agency having primary jurisdiction over the Company.

“ Guarantee ” has the meaning set forth in Section 201(a).

“ Intent-Based Replacement Disclosure ” means, as to any Qualifying Preferred Stock, that the issuer has publicly stated its intention, either in the prospectus or other offering document under which such securities were initially offered for sale or in filings with the Commission made by the issuer under the Exchange Act, prior to or contemporaneously with the issuance of such securities, that to the extent that the Qualifying Preferred Stock provides the issuer with rating agency equity credit at the time of redemption or purchase, the issuer will redeem or purchase such securities only with the proceeds of replacement capital securities that have terms and provisions at the time of such redemption or purchase that are as or more equity-like than the securities then being redeemed or purchased, raised within 180 days prior to the applicable redemption or purchase date. Notwithstanding the use of the term Intent-Based Replacement Disclosure in the definition of Qualifying Preferred Stock herein, the requirement in such definition that a particular security or the related transaction documents include Intent-Based Replacement Disclosure shall be disregarded and given no force or effect for so long as the Company is a bank holding company within the meaning of the Bank Holding Company Act of 1956, as amended.

“ Interest Payment Date ” has the meaning set forth on Section 201(e).

“ Interest Period ” means the period from and including any Interest Payment Date (or, in the case of the first Interest Payment Date, August 19, 2008) to but excluding the next Interest Payment Date.

“ Issuer Trust ” has the meaning set forth in Section 201(a).

“ Junior Subordinated Debentures ” has the meaning set forth in Section 201(a).

“ Make-Whole Redemption Price ” means the sum of the present values of the principal amount of the Junior Subordinated Debentures being redeemed and each scheduled payment of interest thereon (not including any portion of such payments of interest accrued as of the Redemption Date) from the Redemption Date to and including September 15, 2013, discounted to the Redemption Date from September 15, 2013 or the applicable Interest Payment Date on a quarterly basis (assuming a 360-day year consisting of twelve 30-day months) at a discount rate equal to the Treasury Rate plus 0.50%.

“ Market Disruption Event ” means the occurrence or existence of any of the following events or sets of circumstances:

(a) trading in securities generally (or in the Common Stock or the Qualifying Preferred Stock specifically) on the New York Stock Exchange or any other national securities exchange, or in the over-the-counter market, on which the Common Stock and/or the Company’s preferred stock is then listed or traded shall have been suspended or its settlement generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or market by the relevant exchange or market or by any other regulatory body or governmental agency having jurisdiction, and the establishment of such minimum prices materially disrupts or otherwise has a material adverse effect on trading in, or the issuance and sale of, the Qualifying APM Securities;

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(b) the Company would be required to obtain the consent or approval of its stockholders or a regulatory body (including, without limitation, any securities exchange) or governmental authority to issue Qualifying APM Securities pursuant to Section 201(j), and the Company fails to obtain such consent or approval notwithstanding its commercially reasonable efforts to obtain such consent or approval (including, without limitation, failing to obtain approval for such issuance if required from the Federal Reserve after having given notice to the Federal Reserve as required under Section 201(j));

(c) a banking moratorium shall have been declared by the federal or state authorities of the United States and such moratorium materially disrupts or otherwise has a material adverse effect on trading in, or the issuance and sale of, the Qualifying APM Securities;

(d) a material disruption shall have occurred in commercial banking or securities settlement or clearance services in the United States and such disruption materially disrupts or otherwise has a material adverse effect on trading in, or the issuance and sale of, the Qualifying APM Securities;

(e) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States, there shall have been a declaration of a national emergency or war by the United States or there shall have occurred any other national or international calamity or crisis and such event materially disrupts or otherwise has a material adverse effect on trading in, or the issuance and sale of, the Qualifying APM Securities;

(f) there shall have occurred such a material adverse change in general domestic or international economic, political or financial conditions, including as a result of terrorist activities, and such change materially disrupts or otherwise has a material adverse effect on trading in, or the issuance and sale of, the Qualifying APM Securities;

(g) an event occurs and is continuing as a result of which the offering document for the offer and sale of Qualifying APM Securities would, in the Company’s reasonable judgment, contain an untrue statement of a material fact or omit to state a material fact required to be stated in such offering document or necessary to make the statements in such offering document not misleading and either (i) the disclosure of such event at such time, in the Company’s reasonable judgment, is not otherwise required by law and would have a material adverse effect on its business or (ii) the disclosure relates to a previously undisclosed proposed or pending development or material business transaction, and the Company has a bona fide business reason for keeping the same confidential or the disclosure of which would impede the Company’s ability to consummate such transaction; provided that no single suspension period described in this clause (g) shall exceed 90 consecutive days and multiple suspension periods described in this clause (g) shall not exceed an aggregate of 90 days in any 180-day period with respect to the Company’s obligations pursuant to Section 201(j); or

(h) the Company reasonably believes that the offering document for the offer and the sale of Qualifying APM Securities would not be in compliance with a rule or regulation of the Commission (for reasons other than those referred to in clause (g) above) and the Company is unable to comply with such rule or regulation or such compliance would be unduly burdensome; provided that no single suspension period described in this clause (h) shall exceed 90 consecutive days and multiple suspension periods described in this clause (h) shall not exceed an aggregate of 90 days in any 180-day period with respect to the Company’s obligations pursuant to Section 201(j).

“ Maximum Share Number ” has the meaning set forth in Section 201(j)(5).

“ Parity Securities ” has the meaning set forth in Section 201(g)(i).

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“ Permitted Remedies ” means, with respect to any securities, one or more of the following remedies: (a) rights in favor of the holders of such securities permitting such holders to elect one or more directors of the issuer (including any such rights required by the listing requirements of any securities exchange or market on which such securities may be listed or traded) and (b) complete or partial prohibitions on the issuer paying distributions on or repurchasing common stock or other securities that rank pari passu with or junior as to distributions to such securities for so long as distributions on such securities, including unpaid distributions, remain unpaid.

“ Preferred Stock Issuance Cap ” has the meaning set forth in Section 201(j)(2).

“ Qualifying APM Securities ” means Common Stock, Qualifying Preferred Stock and Qualifying Warrants, provided that the Company may, without the consent of the holders of the Capital Securities or the Junior Subordinated Debentures, amend this definition of Qualifying APM Securities to eliminate Common Stock or Qualifying Warrants (but not both) from the definition if, after August 12, 2008, an accounting standard or interpretive guidance of an existing accounting standard issued by an organization or regulator that has responsibility for establishing or interpreting accounting standards followed by the Company becomes effective such that there is more than an insubstantial risk that failure to eliminate Common Stock or Qualifying Warrants from the definition would result in a reduction in the Company’s earnings per share as calculated in accordance with generally accepted accounting principles.

“ Qualifying Preferred Stock ” means the Company’s non-cumulative perpetual preferred stock that (i) ranks pari passu with or junior to the Company’s other preferred stock, (ii) as to which the transaction documents provide for no remedies as a consequence of non-payment of dividends other than Permitted Remedies, and (iii)(a) is subject to Intent-Based Replacement Disclosure and has a provision that prohibits the Company from making any distributions thereon upon the Company’s failure to satisfy one or more of the financial tests set forth therein, or (b) is subject to a Qualifying Replacement Capital Covenant.

“ Qualifying Replacement Capital Covenant ” means a replacement capital covenant that is substantially similar to the Wells Fargo Capital XII Replacement Capital Covenant or a replacement capital covenant, as identified by the Company’s Board of Directors acting in good faith and in its reasonable discretion and reasonably construing the definitions and other terms of the Wells Fargo Capital XII Replacement Capital Covenant, (i) entered into by a company that at the time it enters into such replacement capital covenant is a reporting company under the Exchange Act and (ii) that restricts the company and its subsidiaries from redeeming or purchasing a series of the Company’s non-cumulative perpetual preferred stock except to the extent of the applicable percentage of the net proceeds from the issuance of specified replacement capital securities that have terms and provisions at the time of redemption or purchase that are as or more equity-like than the securities then being redeemed or purchased within the 180-day period prior to the applicable redemption or purchase date.

“ Qualifying Warrants ” means net share settled warrants to purchase the Common Stock that (1) have an exercise price greater than the Current Stock Market Price of the Common Stock as of the date the Company agrees to issue the warrants, and (2) the Company is not entitled to redeem for cash and the holders of which are not entitled to require the Company to repurchase for cash in any circumstances. If the Company issues Qualifying Warrants, the Company will be required to use commercially reasonable efforts, subject to the Common Equity Issuance Cap, to set the terms of such Qualifying Warrants so as to raise sufficient proceeds from their issuance to pay all deferred interest on the Junior Subordinated Debentures in accordance with Section 201(j). The Company intends that any Qualifying Warrants issued in accordance with Section 201(j) will have exercise prices at least 10% above the Current Stock Market Price of the Common Stock on the date of issuance.

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“ Rating Agency Event ” means that any nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Exchange Act that then publishes a rating for the Company (a “ Rating Agency ”) amends, clarifies or changes the criteria it uses to assign equity credit to securities such as the Junior Subordinated Debentures, which amendment, clarification or change results in:

(a) the shortening of the length of time the Junior Subordinated Debentures are assigned a particular level of equity credit by that Rating Agency as compared to the length of time they would have been assigned that level of equity credit by that Rating Agency or its predecessor on the issue date of the Capital Securities; or

(b) the lowering of the equity credit (including up to a lesser amount) assigned to the Junior Subordinated Debentures by that Rating Agency as compared to the equity credit assigned by that Rating Agency or its predecessor on the issue date of the Capital Securities.

“ Senior Debt ” has the meaning set forth in the Indenture, as modified by Section 201(q).

“ Stated Maturity Date ” has the meaning set forth in Section 201(d).

“ Subsidiary ” means, with respect to any Person:

(a) any corporation or company a majority of whose Capital Stock with voting power, under ordinary circumstances, to elect directors is, at the date of determination, directly or indirectly, owned by such Person (a “subsidiary”), by one or more subsidiaries of such Person or by such Person and one or more subsidiaries of such Person;

(b) any partnership in which such Person or a subsidiary of such Person is, at the date of determination, a general partner of such partnership; or

(c) any partnership, limited liability company or other Person in which such Person, a subsidiary of such Person or such Person and one or more subsidiaries of such Person, directly or indirectly, at the date of determination, have (x) at least a majority ownership interest or (y) the power to elect or appoint or direct the election or appointment of the managing partner or member of such Person or, if applicable, a majority of the directors or other governing body of such Person.

“ Tax Event ” means, for purposes of the Junior Subordinated Debentures, the Company has requested and received an Opinion of Counsel experienced in such matters to the effect that, as a result of any:

(a) amendment to or change in the laws or regulations of the United States or any political subdivision or taxing authority of or in the United States that is enacted or issued or becomes effective after August 12, 2008;

(b) proposed change in those laws or regulations that is announced after August 12, 2008;

(c) official administrative decision or judicial decision or administrative action or other official pronouncement interpreting or applying those laws or regulations that is announced after August 12, 2008; or

(d) threatened challenge asserted in connection with an audit of the Issuer Trust, the Company or its Subsidiaries, or a threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Junior Subordinated Debentures or the Capital Securities, there is more than an insubstantial risk that:

(i) the Issuer Trust is, or will be, subject to United States federal income tax with respect to income received or accrued on the Junior Subordinated Debentures,

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(ii) interest payable by the Company on the Junior Subordinated Debentures is not, or will not be, deductible by the Company, in whole or in part, for United States federal income tax purposes, or

(iii) the Issuer Trust is, or will be, subject to more than a de minimis amount of other taxes, duties or other governmental charges.

“ Trading Day ” means a day on which the Common Stock is traded on the New York Stock Exchange, or if not then listed on The New York Stock Exchange, a day on which the Common Stock is traded or quoted on the principal U.S. securities exchange on which it is listed or quoted, or if not then listed or quoted on a U.S. securities exchange, a day on which the Common Stock is quoted in the over-the-counter market.

“ Treasury Dealer ” means Citigroup Global Markets Inc. (or its successor) or, if Citigroup Global Markets Inc. (or its successor) refuses to act as Treasury Dealer for the purpose of determining the Make-Whole Redemption Price or ceases to be a primary U.S. Government securities dealer, another nationally recognized investment banking firm that is a primary U.S. Government securities dealer specified by the Company for these purposes.

“ Treasury Price ” means the bid-side price for the Treasury Security as of the third trading day preceding the Redemption Date, as set forth in the daily statistical release (or any successor release) published by the Wall Street Journal in the table entitled “Treasury Bonds, Notes and Bills,” except that: (i) if that release (or any successor release) is not published or does not contain that price information on that trading day; or (ii) if the Treasury Dealer determines that the price information is not reasonably reflective of the actual bid-side price of the Treasury Security prevailing at 3:30 p.m., New York City time, on that trading day, then Treasury Price will instead mean the bid-side price for the Treasury Security at or around 3:30 p.m., New York City time, on that trading day (expressed on a next trading day settlement basis) as determined by the Treasury Dealer through such alternative means as are commercially reasonable under the circumstances.

“ Treasury Rate ” means the quarterly equivalent yield to maturity of the Treasury Security that corresponds to the Treasury Price (calculated in accordance with standard market practice and computed as of the second trading day preceding the Redemption Date).

“ Treasury Security ” means the United States Treasury security that the Treasury Dealer determines would be appropriate to use, at the time of determination and in accordance with standard market practice, in pricing the Junior Subordinated Debentures being redeemed in a tender offer based on a spread to United States Treasury yields.

“ Trust Agreement ” has the meaning set forth in Section 201(a).

“ Wells Fargo Capital XII Replacement Capital Covenant ” means the replacement capital covenant relating to the Company’s 7.875% Junior Subordinated Deferrable Interest Debentures due 2068.

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ARTICLE TWO

TERMS OF SERIES OF DEBT SECURITIES

Section 201. Terms of the Junior Subordinated Debentures. Pursuant to Sections 201 and 301 of the Indenture, there is hereby established a series of Debt Securities, the terms of which shall be as follows:

(a) Designation . The Debt Securities of this series shall be known and designated as the “8.625% Junior Subordinated Deferrable Interest Debentures due 2068” of the Company (the “ Junior Subordinated Debentures ”). The CUSIP number of the Junior Subordinated Debentures is 949746 PK1. The Junior Subordinated Debentures initially shall be issued to Wells Fargo Capital XIV, a Delaware statutory trust (the “ Issuer Trust ”). The Trust Agreement for the Issuer Trust shall be the Amended and Restated Declaration of Trust and Trust Agreement, dated as of August 19, 2008 (the “ Trust Agreement ”), among the Company, as Depositor, The Bank of New York Mellon Trust Company, National Association, as Property Trustee, Wilmington Trust Company, as Delaware Trustee, and the Administrative Trustees named therein (the “ Administrative Trustees ”). The Guarantee (the “ Guarantee ”) will be issued pursuant to the Guarantee Agreement, dated as of August 19, 2008, between the Company and The Bank of New York Mellon Trust Company, National Association, as Guarantee Trustee.

(b) Aggregate Principal Amount . The maximum aggregate principal amount of the Junior Subordinated Debentures which may be authenticated and delivered under the Indenture and this Fifth Supplemental Indenture is $690,010,000 (except for Junior Subordinated Debentures authenticated and delivered upon registration of transfer of, or exchange for, or in lieu of, other Junior Subordinated Debentures pursuant to Section 304, 305, 306, 906 or 1107 of the Indenture).

(c) Form and Denominations . The Junior Subordinated Debentures will be issued only in fully registered form, and the authorized denominations of the Junior Subordinated Debentures shall be $25 principal amount and any integral multiple thereof. The Junior Subordinated Debentures will be denominated in U.S. dollars and payments of principal and interest will be made in U.S. dollars.

(d) Stated Maturity Date . The principal amount of, and all accrued and unpaid interest on, the Junior Subordinated Debentures shall be payable in full on September 14, 2068, or if such day is not a Business Day, the following Business Day (the “ Stated Maturity Date ”).

(e) Rate of Interest . The Junior Subordinated Debentures shall bear interest from and including August 19, 2008 to but excluding the Stated Maturity Date at the rate of 8.625% per annum, computed on the basis of a 360-day year comprised of twelve 30-day months. Subject to Sections 201(g) and (h), interest on the Junior Subordinated Debentures shall be payable quarterly in arrears on September 15, June 15, September 15, and December 15 of each year and on the Stated Maturity Date, commencing on December 15, 2008, until and including the Stated Maturity Date (each such date, an “ Interest Payment Date ”), or if any such day is not a Business Day, the following Business Day (and no interest shall accrue as a result of such postponement). Any installment of interest (or portion thereof) deferred in accordance with Section 201(g) or otherwise unpaid shall bear interest, to the extent permitted by law, at the rate of 8.625% per annum, from the relevant Interest Payment Date, compounded on each subsequent Interest Payment Date, until paid in accordance with Section 201(h).

(f) To Whom Interest Payable . Interest shall be payable to the Person in whose name the Junior Subordinated Debentures are registered at the close of business on the Regular Record Date next preceding the relevant Interest Payment Date, except that interest payable on the Stated Maturity Date shall be paid to the Person to whom principal is paid. The Regular Record Dates for the Junior

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Subordinated Debentures shall be the date 15 calendar days, whether or not a Business Day, before the relevant Interest Payment Date. Interest shall be payable at the office or agency of the Company maintained for such purpose in the City of Minneapolis, Minnesota and at any other office or agency maintained by the Company for such purpose; provided that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or by wire transfer to such account as may have been appropriately designated by such Person. The principal of and interest on the Junior Subordinated Debentures payable at Maturity will be made against presentation of the Junior Subordinated Debentures at the office or agency of the Company maintained for that purpose in the City of Minneapolis, Minnesota. Upon written request to the Paying Agent not less than 15 calendar days prior to the date on which interest is payable, a Holder of $1,000,000 or more in aggregate principal amount of Junior Subordinated Debentures may receive payment of interest, other than payments of interest payable at Maturity, by wire transfer of immediately available funds.

(g) Option to Defer Interest Payments . (i) The Company shall have the right, at any time and from time to time prior to the Stated Maturity Date, to defer the payment of interest on the Junior Subordinated Debentures for one or more consecutive Interest Periods that do not exceed 40 consecutive Interest Periods; provided that no Deferral Period shall extend beyond the Stated Maturity Date or the earlier redemption of the Junior Subordinated Debentures; and provided, further, that if an Event of Default with respect to the Junior Subordinated Debentures has occurred and is continuing or the Company is in default regarding its payment of any obligation under the Guarantee or the Company has given notice of its election to defer interest payments but the Deferral Period has not yet commenced or a Deferral Period is continuing, the Company shall not, and shall not permit any Subsidiary to: (A) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Company’s capital stock, (B) make any payment of principal of, or interest or premium, if any, on, or repay, purchase or redeem any of the Company’s debt securities or guarantees that rank pari passu upon the Company’s liquidation with the Junior Subordinated Debentures (“ Parity Securities ”) or any of the Company’s debt securities that rank junior upon the Company’s liquidation to the Junior Subordinated Debentures or (C) make any guarantee payments with respect to any guarantee by the Company of the junior subordinated debt securities of any Subsidiary if such guarantee ranks junior to the Junior Subordinated Debentures.

(ii) The restrictions listed in clause (i) of this Section 201(g) do not apply to:

(A) any purchase, redemption or other acquisition of shares of capital stock of the Company in connection with (1) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors, consultants or independent contractors, (2) a dividend reinvestment or stockholder purchase plan, or (3) the issuance of capital stock of the Company, or securities convertible into or exercisable for such capital stock, as consideration in an acquisition transaction entered into prior to the applicable Deferral Period;

(B) any exchange, redemption or conversion of any class or series of the capital stock of the Company or of any of its Subsidiaries for any other class or series of the Company’s capital stock, or of any class or series of the Company’s indebtedness for any class or series of the Company’s capital stock;

(C) any purchase of fractional interests in shares of the Company’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the securities being converted or exchanged;

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(D) any declaration of a dividend in connection with a stockholder rights plan, or the issuance of rights, stock or other property under any stockholder rights plan, or the redemption or purchase of rights pursuant thereto;

(E) any payment by the Company under the Guarantee;

(F) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock;

(G) any payment during a Deferral Period of current or deferred interest in respect of Parity Securities that is made pro rata to the amounts due on such Parity Securities and on the Junior Subordinated Debentures, provided that such payments are made in accordance with Section 201(h) to the extent it applies, and any payment of deferred interest on Parity Securities that, if not made, would cause the Company to breach the terms of the instrument governing such Parity Securities;

(H) any payments of interest on Parity Securities in additional Parity Securities and any repurchase of Parity Securities in exchange for preferred stock, in