; (B) a derivative instrument (as defined in section 240.13d–3(f)(2) of title 17, Code of Federal Regulations); (C) an interest resulting from a securities transaction by members of the immediate family (as defined in section 240.13d–3(f)(3) of title 17, Code of Federal Regulations) sharing the same household as the person, except that the presumption of the short interest in that circumstance is rebuttable; (D) the proportionate interest of a general partner in the securities transaction by a general or limited partnership, which, as evidenced by the partnership agreement in effect at the time of the transaction and the most recent financial statements of the partnership, shall be the greater of— (i) the share of the profits of the partnership of the general partner, including— (I) (aa) profits attributed to any limited partnership interests held by the general partner; and (bb) any other interests in profits that arise from the purchase and sale of the portfolio securities of the partnership; or (ii) the share of the partnership capital account of the general partner, including the share attributable to any limited partnership interest held by the general partner; (E) a performance-related fee, other than an asset-based fee, received by any— (i) broker; (ii) dealer; (iii) bank; (iv) insurance company; (v) investment company; (vi) investment adviser; (vii) investment manager; or (viii) trustee or person performing a similar function; and (F) an interest of a person in securities transactions by a trust. (4) Exception to performance-related fee A person shall not be deemed to have a short interest in a security because of a performance-related fee described in paragraph (3)(E) if— (A) the performance-related fee, regardless of when payable, is calculated based upon net capital gains or net capital appreciation generated from— (i) a portfolio; or (ii) the overall performance of the fiduciary over a period of not less than 1 year