Thanks ... from your link:
Rule 10b5-1 under the Exchange Act provides important flexibility for issuers to use qualifying contracts, instructions or plans to carry out repurchase programs despite the inevitable ebb and flow of material nonpublic information. Rule 10b5-1 explicitly provides that an individual or entity buying or selling securities while aware of material nonpublic information does not violate Rule 10b-5 if the buying or selling is in conformity with a binding contract, instruction or written plan put into place at a time when the trader was not aware of such information.
The liability avoidance provisions of Rule 10b5-1 are affirmative defenses. If the government can prove an individual or entity was aware of material nonpublic information at the time of a purchase or sale, the burden of proving that the trading was pursuant to an adequate contract, instruction or written plan will be on the trader. Compliance must be well documented and capable of proof in court.
Depending upon the issuer’s unique objectives, it may be possible to structure a stock repurchase program that complies with Rule 10b-18 while also providing the issuer the affirmative defenses of Rule 10b5-1. For example, some issuers may want to conduct their repurchase program through a prearranged written formula plan. Other issuers may prefer to delegate actual trading decisions, within certain defined parameters, to a broker or other person over whom the issuer does not exercise influence. Still other issuers may establish information barriers using policies and procedures that prevent the flow of material nonpublic information to the individual making the decision on its behalf to repurchase stock.
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