; or (ii) the overall performance of the fiduciary over a period of not less than 1 year; (B) interests resulting from transactions in the securities of the issuer do not account for more than 10 percent of the market value of a portfolio; and (C) the fee is only a right to a non performance-related fee. (5) Use of contract or other device to evade requirements A person shall be deemed to have a short interest in the security if the person, directly or indirectly, creates or uses a trust, proxy, power of attorney, pooling arrangement, or any other contract, arrangement, or device to divest the person of a short interest in a security or to prevent the vesting of the short interest in a security as part of a plan to evade the reporting requirements of this section. (6) Aggregation All securities of the same class in which a person has a short interest, regardless of the form of the short interest, shall be aggregated in calculating the number of shares in which the person has a short interest. (7) Exceptions Notwithstanding paragraphs (3) and (6)— (A) a person shall be deemed to have a short interest in a security if the person has the right to acquire, not later than 60 days after the date on which the right is obtained, a short interest in the security— (i) through the exercise of any— (I) option; (II) warrant; or (III) right; (ii) in accordance with the power to revoke a— (I) trust; (II) discretionary account; or (III) similar arrangement; or (iii) in accordance with the automatic termination of a— (I) trust; (II) discretionary account; or (III) similar arrangement; (B) a person shall be deemed to have a short interest in a security immediately upon acquisition of the security if the person acquires the security— (i) by the means described in subparagraph (A); and (ii) (I) with the purpose of changing or influencing the control of the issuer; or (II) in connection with, or as a participant in, a transaction having the purpose of changing or influencing the control of the issuer